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Full text of "Mortuary law"

MORTUARY LAW. 



BY 



SIDNEY PERLEY, 

OF THE MASSACHUSETTS BAR. 

AUTHOR OF " THE LAW OF INTEREST," " MASSACHUSETTS 
ADJUDICATED FORMS," ETC. 




BOSTON: 

PUBLISHED BY GEORGE B. REED, 
LAW PUBLISHER. 

1896. 



WAA 

P4-SU 

Copyright, 1896, 
By Sidney Perley. 



©nibersttg l$xm: 
John Wilson and Son, Cambridge, U. S. A. 



PREFACE. 



In this volume it is endeavored to show the prin- 
ciples that underlie all law concerning dead human 
bodies. In modern times, because of the increase of 
population, for sanitary reasons, and on account of 
the large amount of money that is expended for 
funerals, for monuments, and for the care of burial 
places, the subject becomes increasingly important. 
The various legislatures have changed and extended 
the common law in some respects ; but the great body 
of mortuary common law continues to be maintained 
in the United States. 

SIDNEY PERLEY. 

Salem, Mass., 

October 17, 1896. 



CONTENTS. 



Chapter Page 

I. Last Sickness 1 

II. Record of Deaths and Burials 9 

III. Inquests 11 

IV. Mutilation op Dead Bodies 20 

V. Property in Dead Bodies 23 

VI. Custody of Dead Bodies 26 

VII. Disposition of Dead Bodies 30 

The Right of Burial 30 

The Duty of Burial 36 

Manner of Disposition 39 

VIII. Undertakers 48 

IX. Funerals 51 

X. Funeral Expenses 59 

XI. Monuments, Gravestones, etc 86 

XII. Permits to Transport, Bury, and Exhume 

Dead Bodies 100 

XIII. Transportation of Dead Bodies .... 103 

XIV. Exhumation of Dead Bodies 109 

XV. Cemeteries 114 

Tombs 114 

What constitutes a Cemetery 117 

Establishment of Cemeteries 119 

Kinds of Cemeteries 119 



Vi CONTENTS. 

Chapter Paqe 

XVI. Prohibition of Cemeteries 133 

XVII. Acquirement of Cemetery Lands . . 136 

By Prescription 136 

By Dedication 137 

By Conveyance 141 

By Right of Eminent Domain 142 

Reversion 147 

XVIII. Cemeteries as Nuisances 149 

XIX. Cemeteries as Charities 155 

XX. Rules and Regulations 159 

XXI. Taxation 162 

XXII. Sale, Mortgage, and Partition of Cem- 

etery Property 169 

Sale of Cemetery Property 169 

Mortgage of Cemetery Property 170 

Partition of Cemetery Property 171 

XXIII. Care and Conduct of Cemeteries . . . 172 

XXIV. Rights and Liabilities of Lot Owners . 177 
XXV. Replevin 189 

XXVI. Larceny 191 

XXVII. Desecration of Cemeteries 192 

XXVIII. Opening Highways through Cemeteries 196 

XXIX. Abolition of Cemeteries 199 

XXX. Jurisdiction of Courts 208 



Index 211 



TABLE OF CASES CITED. 



Accounting of James Frazier et al., ex'rs, 95. 

M. F. Reynolds, ex'r, 67. 
Adams, adm'r, v. Butts, 83. 
Adams' ex'rs v. Jones' adm'r, 8. 
Allegheny County v. Watt, 17, 18. 
Ambrose v. Kerrison, 74, 81, 82. 
Andrews v, Cawthorne, 121. 
Anonymous, 12. 

Antrim et al., tr's, v. Malsbury et al., 124, 128. 

Appeal of Ann M'Glinsey, adm'x, 67, 90. 

Appeal Tax Court v. Baltimore Cemetery Co., 164. 

v. Zion Church of Baltimore, 164, 165. 
Application of St. Bernard & St. Lawrence Cemetery Associa- 
tion, 124, 131, 145, 151. 
Ashbury v. Sanders, 8. 
Ashby v. Harris, 187. 

Attorney General et al. v. Mayor, &c. of City of Newark, 199, 
201. 

Austin et al. v. Murray, 159, 160. 

Bainbridge's Appeal, 94. 

Barnes v. Hathorn, 131, 149-153. 

Bartlett et al., ex'rs et tr's, petitioners, 155, 156. 

Bates, adm'r, v. Bates, 155, 156. 

Beatty et al. v. Trustees of German Lutheran Church of 

Georgetown, 117, 147. 
Begein et al. v. City of Anderson, 149, 151, 161. 
Bendall's distributees v. Bendall's adm'r, 89, 91. 
Bennett et al. v. Culver, 130. 



viii 



TABLE OF CASES CITED. 



Bessemer Land & Improvement Co. v. Jenkins, 112, 204. 
Birkholm v. Wardell et al., 68, 69. 
Blaney v. State, 14, 16. 

Bloomington Cemetery Association v. People, 162, 164, 165. 
Board of Street Opening, &c. v. St. John's Cemetery, 196. 
Bogert v. City of Indianapolis, 23, 33, 41, 159, 172. 
Bonham v. Loeb, 111, 177. 

Bourland v. Springdale Cemetery Association, 129, 130, 172, 185. 

v. Springdale Cemetery Association et al., 173. 
Bourland et al. v. Springdale Cemetery Association, 185. 

v. Springdale Cemetery Association et al., 129, 172. 
Bowditch v. Jordan, 8. 
Boyce et al. v. Kalbaugh et al., 140, 210. 
Bradshaw v. Beard, 76, 81. 

Brendle et al. v. German Reformed Congregation et al., 142. 
Brice v. Wilson, 71, 74, 75, 83. 

Brick Presbyterian Church v. Mayor, &c. of City of New 

York, 151. 
Brown v. Cure, &c. of Montreal, 180. 

v. Lutheran Church, 171. 
Bryan v. Whistler, 122. 

Buffalo City Cemetery v. City of Buffalo, 164, 167, 178. 
Burke v. Wall et al., 184. 
Burnett v. Noble, 93. 
Butrick v. Tilton, 8. 



Campbell v. City of Kansas, 139, 147, 148, 199-203. 

v. Purdy, 90. 
Campfield, ex'r, v. Ely et al., 64. 
Chappie v. Cooper, 81. 
Christy v. Whitmore et al., 127. 

City of Austin v. Austin City Cemetery Association, 159. 
City of Baltimore v. Proprietors of Green Mount Cemetery 

163. J 
City of Greencastle v. Hazelett, 153. 
City of Hoboken v. Inhabitants of North Bergen, 165. 
City of New Castle v. Stone Church Graveyard, 164. 
City of New Orleans v. Wardens of the Church of St. Louis 

149, 150. 



TABLE OF CASES CITED. 



ix 



City Council of Charleston v. Wentworth Street Baptist 

Church, 134. 
Clark County v. Calloway, 12, 18. 

v. Kerstan, 18, 19. 

v. Lawreuce, tr., 152, 153. 
Coates v. Mayor, &c. of City of New York, 202. 
Commissioners of Bartholomew County v. Jameson, 17, 19. 
Commissioners of Dearborn County v. Bond, 17. 
Commissioners of Dubois County r. Wertz, 19. 
Commonwealth v. Cooley, 109, 113. 

v. Goodrich, 50, 159, 160. 

v. Harman, 17, 18. 

v. Thompson, 8. 

v. Viall, 126, 129, 138, 174, 175, 187, 194. 

v. Wellington, 126, 195, 199. 
Concordia Cemetery Association v. Minnesota & Northwestern 

R. R. Co., 117, 118, 197. 
Conger v. Treadway, 178. 
Constantinides v. Walsh, ex'r, 37, 78, 81. 
Cook et al. v. Walley & Rollins et al.,21, 101. 
Cornwell v. Deck, 89. 

County Commissioners of Pueblo v. Marshall et al., 17. 
County of Allegheny v. Shaw et al., 17. 
County of Lancaster v. Mishler, 12, 18. 
County of Northampton v. Innes, 17, 18. 

Craig et al. v. First Presbyterian Church of Pittsburgh, 200-202, 
204, 206. 

Crapo, ex'r, v. Armstrong, 86, 88, 91. 
Crawford v. Elliott, 8. 
Crisfield v. Perine, 17. 
Crowell v. Londonderry, 133. 
Cunningham v. Reardon, 37, 73, 76-78, 81. 

Dalrymple v. Arnold, adm'r, 81. 

Dampier v. St. Paul Trust Co., 71, 79. 

Davidson v. Read et al., 137, 195. 

Davie v. Briggs, 8. 

Dawson v. Small, 155-157. 

Day v. Beddingfield et al., 98, 120, 123, 193. 



X 



TABLE OF CASES CITED. 



Dean and Chapter of Exeter's Case, 121. 
Deansville Cemetery Association, 144, 146. 
Detwiller v. Hartman, 155, 156. 
Doe v. Pitcher et al., 155, 156. 
Doe et al. v. Andrews et al., 8. 

v. Deakin et al., 8. 
Dolan et al. v. Mayor, &c. of City of Baltimore, 147. 
Domina Regina v. Clerk, 15. 
Dominus Rex v. Bond, 13, 14. 

v. Stikeley, 14. 
Donald v. McWhorter, 67, 71, 87. 

Donnelly v. Boston Catholic Cemetery Association, 155, 186. 
Du Bois Cemetery Co. v. Griffin et al., 198. 
Dunn v. City of Austin, 149, 151, 152. 
Durell v. Hayward, 37, 88. 

v. Walker et al., 33. 
Dwenger et al. v. Geary et al., 124, 161, 179, 180. 



Edwards v. Edwards, adm'x, 71. 

Edwards et ux. v. Stonington Cemetery Association, 119. 
Ellison v. Commissioners of Washington, 149, 150, 154. 
Emans, ex'r, v. Hickman et al., 92. 
Estate of Alfred Allen, 64, 68-70, 90. 

G. A. Erlacher, 71, 89. 

John S. Hill, 37, 75, 77, 78, 81. 

Emma J. Luchy, 93. 

Susan B. Miller, 74. 

Owen Rooney, 72, 89. 

Adna Wood, 66. 

Evangelical Lutheran Cemetery Association v. Lange, assessor, 
166. 

Evergreen Cemetery Association v. City of New Haven 143 
176, 197. 

Evergreen Cemetery Association of New Haven v. Beecher et al 

143, 146. 
Ex parte Anderson, 16. 

Blackmore, 121,122. 

James M'Annully, 14. 



TABLE OF CASES CITED. 



xi 



Farneman et al. v. Mount Pleasant Cemetery Association, 142. 
Fay v. Fay, 84. 

Fay et al. v. Inhabitants of Milford, 127, 182. 

Ferrin v. Myrick, adm'r, 36, 59, 80. 

Fiske v. Attorney General, 155, 156. 

Flintham's Appeal, 66. 

Foley v. Phelps, 20, 26. 

Foley, adm'r, v. Bushway, 87, 88. 

Ford, &c. v. Ford's ex'r, 91, 92. 

Foster v. Dodd et al., 23, 113, 208. 

Foulks v. Rhea, 8. 

Fowler v. Fowler, 155, 156. 

France's Estate, 63, 74. 

F. R. B. Cemetery Association v. Redd, 142, 144-146. 
Freeman, ex'r, v. Coit et al., 6, 78, 81. 
Fryar v. Johnson, 122. 

Gilbert v. Buzzard et al., 41, 55, 121. 
Gilmer's legatees v. Gilmer's ex'rs, 157. 
Graves v. City of Bloomington, 100, 101. 
Green v. Salmon, 78. 

Gregory v. Hooker's adm'r, 59, 73, 74, 77, 78, 83, 84. 

Griggs, adm'r, v. Veghte et al., 86, 91. 

Griswold et al. v. Chandler, 64. 

Gumbert's Appeal, 141, 148. 

Guthrie v. Weaver, 23, 32, 34, 35, 112, 189. 

Hackett v. Hackett, 33. 

Hadsell et al. v. Hadsell et al., 23, 27, 33, 83. 

Hagaman v. Dittmar, 138. 

Hale v. Bonner et al., 104. 

Hamilton v. City of New Albany, 187. 

Hancock v. McAvoy, 187. 

v. Metz, 8. 

v. Podmore, ex'x, 71. 
Hapgood v. Houghton, ex'r, 78, 83. 
Hartson, ex'r, v. Elden et al., 155-157. 
Hasler v. Hasler, 62, 63. 



xii 



TABLE OF CASES CITED. 



Hayes v. Hauke et al., 138. 
Haynes' Case, 191. 
Herbert v. Pue, 132. 
Hewett u. Bronson, 60, 61. 
Hicks et al. v. Dan ford et al., 137. 
Hoare v. Osborne, 155, 156. 
Hodge v. Blanton, 132. 
Holmes et al. v. Johnson, 8. 
Hook, &c. v. Joyce, 119, 136, 137. 

Houston Cemetery Co. et al. v. Drew et al., 131, 174, 183. 

Howard's Estate, 95. 

Hoyt v. Newbold, 8. 

Hullman et al. v. Honcamp et al., 139. 

Humphrey et al. v. Trustees of M. E. Church, 184. 

Hunter v. Bullock, 155, 156. 

v. Trustees of Sandy Hill, 137, 140. 
Huse v. Brown, ex'r, 3. 

Ingles' Estate, 94. 

In re Birkett, 155, 156. 

Mutual Benefit Co., 8. 

Rector, &c. of St. George-in-the-East, 209. 

Wachter's Estate, 65. 

Williams, 155, 156. 

Wong Yung Quy, 110. 

Jameson v. Commissioners of Bartholomew County, 12, 17-19. 

Jamison v. Smith, 8. 

Jenkins v. Tucker, 34, 37, 38, 70, 75, 81. 

Jenkins et al. v. Inhabitants of Andover et al., 175. 

Johnson v. Baker, 64. 

Jones v. Ashburnham et ux., 23. 

Kanavan's Case, 40, 41, 47, 55. 
Keet v. Smith et al , 97. 
Kemp v. Wickes, 32, 121. 
Kincaid's Appeal, 109, 110, 179, 181-183, 207. 
King v. Coleridge et al., 121, 208. 
v. Evett, 15. 



TABLE OF CASES CITED. 



xiii 



King v. Soleguard et al., 12, 14. 
Kingsbury v. Flowers, 149, 154. 
Kittle v. Huntley, 72, 79. 

Laird et al. v. Arnold, adui'r, 88. 

v. Arnold, adm'r, et al., 87. 
Lake Erie & Western R. R. Co. v. James, 103. 
Lakin v. Ames et al., 33, 116, 126. 
Lancaster County v. Dern, 11, 12. 

v. Holyoke, 12, 15, 18. 
Lang v. Commissioners of Perry County, 18. 
Larson v. Chase, 20, 26, 27, 33. 
Lautz v. Buckingham, 171. 
Lawall et al. v. Keidler, ex'r, 82. 
Lentz v. Pilert, 62, 77, 79. 
Lerch, adm'r, v. Emmett et al., 87. 
Lewis v. Walker's ex'rs, 188. 
Lightbown v. M'Myn, 78, 81, 82. 
Lima v. Lima Cemetery Association, 164, 168. 
Lloyd v. Lloyd, 155, 156. 
Loring v. Steinman, 8. 
Louisville v. Nevins, &c, 162, 163. 
Lucas v. Hessen et al., 78, 81, 83. 
Lucy v. Walrond, adm'r, 73. 
Lund v. Lund, 60, 90. 

Marden v. City of Boston, 8. 

Matter of Brick Presbyterian Church, 23, 116, 193, 194, 205, 206. 
McCue, adm'r, v. Garvey, 31, 37, 55, 59, 63, 64, 73, 74, 76, 78, 
79, 81. 

McGough v. Lancaster Burial Board, 182. 

McGuire, adm'r, v. Trustees of St. Patrick's Cathedral, 179-181. 

Meagher v. Driscoll, 24, 110. 

Mease v. Wagner, 79, 82. 

Miller v. Morton et al., 72. 

Mitchell et al. v. Thorne, 193-195. 

Mitchelstown Inquisition, The, 15. 

Monk v. Packard et al., 149, 150, 152, 153. 

Montgomery v. Bevans, 7. 



XIV 



TABLE OF CASES CITED. 



Moore's ex'r v. Moore et al., 155, 156. 

Moreland et al. v. Richardson et al., 170, 183, 193. 

Moulton, adm'r, v. Smith, adm'r, 6, 79, 81, 86. 

Mowry v. City of Providence, 139, 140. 

M. P. Church of Cincinnati v. Laws et al., 141. 

Mt. Moriah Cemetery Association v. Commonwealth, 102, 161. 

Mulroy v. Churchman et al., 165. 

Musgrove v. Catholic Church of St. Louis, 149. 

.Neilson p. Brown et al., 26, 51. 

Nevill v. Bridger, 122. 

Newcombe v. Beloe et al., 75, 78. 

N. Y. Bay Cemetery Co. v. Buckmaster, 178. 

v. Buckmaster et al., 130. 
Nichols v. Eddy, 104. 

Oak Hill Cemetery Association v. Pratt et al., assessors, 167. 

Oakland Cemetery Co. v. Bancroft, 170, 171. 

Olive Cemetery Co. v. City of Philadelphia, 163. 

Ommaney v. Stilwell, 7. 

Owens v. Bloomer, adm'x, et al., 86, 90. 

Pacie v. Archbishop of Canterbury, 66. 
Page v. Symonds et al., 181, 182, 184. 
Palmes et al. v. Stephens, 7, 71. 
Parker, adm'r, v. Lewis, adm'r, 59, 77. 

Partridge et al. v. First Independent Church of Baltimore, 179, 

182, 183, 204, 206. 
Patterson, ex'x, v. Patterson, 59, 74. 
People v. Devine, 14. 

v. Fitzgerald, 13. 

v. Graceland Cemetery Co., 166. 

v. Graves, 113. 
Percival, adm'r, v. McVoy, 3, 4, 6. 
Perkins v. City of Lawrence, 174, 188. 
Peters v. Peters et al., 35, 111. 
Philadelphia v. Westminster Cemetery Co., 133. 
Phillips v. Phillips, 84. 



TABLE OF CASES CITED. 



XV 



Pierce v. Spafford, 128, 139, 172, 186. 

Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 23-25, 
31, 32, 35, 37, 39, 78, 102, 109, 112, 115, 121, 122, 131, 
193, 208. 

Polly Fairman's Appeal, 69, 87, 89-91, 97, 99. 
Porter's Estate, 86, 95. 

Price et al. v. M. E. Church et al., 124, 183, 205. 

Proprietors of Cemetery of Mount Auburn v. Mayor, &c. of 

Cambridge et al., 162, 168. 
Proprietors of Rural Cemetery v. County Commissioners of 

Worcester, 166, 168. 
Protestant Foster Home v. Mayor, &c. of City of Newark, 163. 
Pyle et al., ex'rs, v. Pyle et al., 16. 

Queen v. Clerk, 12, 13, 15. 
v. Fox et al., 23, 28. 
v. Herford, 14. 
v. Price, 19, 31, 45, 46. 
v. Shepherd, 16. 
v. Stephenson et al., 19. 
v. Stewart et al., 41, 32, 38, 57, 83. 
v. Twiss, 209. 
v. Twiss, judge, 196. 

Rappelyea v. Russell, 59, 61, 74, 77-79. 
Rayner v. Nugent et al., adm'rs, 179, 181, 183. 
Redwood Cemetery Association v. Bandy et al., 137, 141. 
Reed et al. v. Stouffer et al., 141, 202. 
Reese Estate, 3. 

Regina v. Sharpe, 23, 27, 34, 109. 

v. Taylor, 16. 

v. Vann, 33, 38. 

v. White et al., 19. 
Renihan et al. v. Wright et al., 28, 37, 49. 
Rex v. Long, 15. 

v. Nicholas et al., 15. 
Richards v. Northwest Protestant Dutch Church, 204, 205. 
Rickard v. Robson, 155, 156. 
Ritchey v. City of Canton, 159. 



xvi 



TABLE OF CASES CITED. 



Rogers v. Price, 7-4, 76, 78, 83. 

Root et al. v. Odd Fellows Cemetery Co., 119. 

Rosehill Cemetery Co. v. Hopkinson, ex'x, 161, 184. 

Ruggles' Report, 32, 36, 113. 

Rust v. Baker, 8. 

Ryan v. Tudor et al., 8. 

Sabin et al. , ex'rs, v. Harkness, 193, 194. 
Salvo & Wade v. Schmidt, 59. 
Samuel v. Estate of John Thomas, 79. 
Schroder v. Wanzor, 169. 
Sears v. Giddey, 80. 
Secor's Case, 100. 

Sensenderfer v. Pacific Mutual Life Insurance Co., 8. 

Seymour v. Page, 174, 183, 187, 188. 

Sharp v. Lush, 59. 

Sheldon v. Ferris et al.,8. 

Shown v. Mackin, 8. 

Silverwood v. Latrobe et al., 187. 

Smiley et al. v. Bartlett et al., 27, 32, 34, 184. 

Smith v. Thompson, 186. 

Smyley, adm'r, v. Reese et al., 80. 

Sohier et al. v. Trinity Church et al., 115, 203. 

Spears v. Burton, 8. 

Spooner v. Brewster, 98, 99, 123, 193, 195. 
Stag v. Punter, 72. 
Staple's Appeal, 80, 81. 
State v. Doepke, 191. 

v. Evans, 15. 

v. Wilson, 137, 140. 

v. Wilson, &c, 164. 
State, &c. v. City of St. Paul, 163, 164. 
Stevens v. Town of Norfolk, 199. 
Stewart's Appeal, 69. 
St. Francis County v. Cummings, 17-19. 
St. John's Cemetery, 200, 203. 
Stockbridge, petitioner, 8. 

Sullivan v. Horner, adm'r, 31, 36, 37, 59, 62, 63, 71, 74,- 82. 
Sweeney v. Muldoon, adm'r, 32, 86, 88. 



TABLE OF CASES CITED. 



xvii 



Tate v. State, 110. 
Thomas v. Thomas, 8. 
Tilly v. Tilly, 8. 

Town of Lake View v. Letz et al., 150, 151. 

v. Hose Hill Cemetery Co., 128, 134, 149-151, 173. 
Trueman v. Tilden, 80. 

Trustees of First Evangelical Church et al. v. Walsh et al., 198. 
Tugwell v. Heyman et al., ex'rs, 59, 70, 74. 
Tuttle, adm'r, v. Robinson, 99. 
Tyler v. Tyler, 158. 

United States v. Eggleston et al., 2. 

University of North Carolina v. Harrison et al , 8. 

Upjohn v. Board of Health et al., 135, 210. 

Valentine v. Valentine, 68. 

Van Emon et al. v. Superior Court, 86. 

Van Hoevenbergh v. Habrouck, coroner, 18. 

Van Orden v. Krouse et al., 84. 

Vaughn v. Thomas, 155. 

Village of Hyde Park v. Oakwoods Cemetery Association, 197. 

Walker et al., com'rs, v. Sheftall, 77, 83. 

Wall Street M. E. Church v. Johnson et al., 124. 

Ward & Co. v. Jones, adm'r, 59, 77. 

Weld v. Walker et al., 23, 34, 37, 109, 111, 210. 

Went v. M. P. Church of Williamsburgh et al., 151, 177, 184, 

201-203. 
Wentworth v. Wentworth, 8. 

White Lick Quarterly Meeting. &c. v. White Lick Quarterly 

Meeting, &c, 180. 
Willeter v. Dobie, 78, 81, 82. 
Williams v. Stonestreet, et ux., 6. 

v. Williams, 23, 28, 29, 32, 37, 45. 
Willis v. Jones et al., assignees, 37, 80. 
Willis' adm'r, v. Heirs of Willis, 64. 
Wilson et al. v. Staats, ex'r, 82. 
Windt et al. v. German Reformed Church, 204, 205. 

b 



xviii 



TABLE OF CASES CITED. 



Winship v. Conner, 8. 

Wolford v. Crystal Lake Cemetery Association, 170. 
Wonson v. Sayward, 191. 

Wood et al. v. Macon and Brunswick R. R. Co. et al., 172, 173, 
197. 

v. Vandenburgh et al., 91. 
Woods v. Woods' adm'r, 8. 
Wright v. Wallasey Local Board, 133. 
Wynkoop v. Wynkoop, 27, 31-33, 36-38, 112. 

Young v. College of Physicians and Surgeons et al., 17, 21. 
v. Heffner, 8. 

Zirngibl v. Calument, &c. Canal & Dock Co., 136. 



MORTUARY LAW. 



CHAPTER I. 

LAST SICKNESS. 

The subject of mortuary law naturally begins with 
a person's last sickness. Until the time he is over- 
taken by that physical condition which terminates his 
life, the common rules of law, as of contract relations, 
etc., apply. But when that time arrives new rules 
come into application and enforcement. This new 
phase of a man's relations arises from the necessity 
of his condition. The law will allow no one to 
suffer for want of necessary care and medical treat- 
ment while in his extremity. 

At common law there is little occasion for defining 
and applying the term. Perhaps the most common 
instance is that where a parent conveys property to 
his child on condition of the child's support of such 
parent during the latter's lifetime, together with the 
expenses of his last sickness. Another instance is 
in the case of a will, in which the testator devises 
certain estate, charging upon it the expenses of his 
last sickness, etc. 

But under the statutes the matter of the last sickness 

1 



2 



MORTUARY LAW. 



becomes much more important, especially in the settle- 
ment of insolvent estates, as in most of the States in 
the Union such expenses are preferred over ordinary 
and over many extraordinary debts, and in some 
States actions can be brought for them before suits 
for the enforcement of ordinary claims. In Alabama, 1 
for instance, such expenses occupy the third place in 
priority of claims, as follows : 1. The funeral ex- 
penses ; 2. Charges of administration ; 3. Expenses 
of last sickness ; 4. Taxes ; 5. Employees' services ; 
6. Other debts. They have priority also over claims 
due to the United States. 2 

Duration of Last Sickness. — The first question that 
arises in relation to the subject of last sickness is 
in reference to the duration of what can be legally 
called a man's last sickness. All people that have 
died have not had such a sickness. Those who have 
been exempt, either died by their own hand, or have 
had their lives taken by accident, legal process, or 
war. In all these exceptional cases there is no medi- 
cal attendance and no nursing. It is not intended 
that in this enumeration any one should be included 
who lingers awhile after an attempt upon his life, 
nor any other who does not immediately die after the 
receipt of a mortal wound. Generally, there is a 
period in which a person is afflicted with some disease 
which continues to affect him physically until it causes 
his death. This must be the primary cause of his 
decease. If it is a congenital disease, or organic de- 
fection simply, the last sickness must be accounted as 
beginning with that change in his condition for the 

1 Alabama Code, 1886, § 2079. 

2 United Slates v. Eggleslon et al, 4 Sawyer (U. S.) 199 (1877). 



LAST SICKNESS. 



3 



worse which is generally plainly perceptible ; for this 
rule does not rest upon the assumption that every 
person is physically perfect and healthful. A person 
may have an organic disease which must, if nothing 
else that is fatal intervenes, eventually produce death, 
and may at times be so enfeebled and so sick there- 
with as to forbid hope of recovery, and yet he may 
again become comparatively well. The last sickness 
arising from such a disease or organic condition is 
not such a sickness, unless in that particular instance 
death results. Such cases are those of cancer, which 
are apparently cured by extraction or otherwise, and 
again and again break out, finally causing death. In 
consumption, the period of last sickness begins at the 
time when a person is decidedly enfeebled and needs 
special treatment, and after which he never really 
returns to his normal condition, but the disease gains 
control over the system, though the subject may at 
times seem to recover some new strength. There 
is no definite rule, of course, that can be laid down 
to govern as to the beginning of the last sickness in 
every case. It must vary with the many different 
diseases and causes of death ; and it should be left to 
the jury to determine in each particular case. 1 The 
policy of the law is to be liberal in this respect, that 
every person may receive all the attention and care 
and skill which his condition demands, the financial 
part of the question being secondary. 2 

The last sickness in its termination is more certain. 
Death ends it abruptly. 

1 Huse v. Brown, ex\ 8 Maine 167 (1831); Reese Estate, 2 
Pearson (Pa.) 482. 

2 Percival, adnCr, v. McVoy, Dudley (S. C.) 337 (1838). 



4 



MORTUARY LAW. 



Character of Service and Expenses. — What are the 
expenses of the last sickness of a person ? It is clear 
that medical attendance, nursing, 1 medicine, and some 
articles peculiarly proper and necessary to be used in 
the kind of sickness in each particular case are neces- 
sary and come within such service and expenses. It 
is doubtful if food, clothing, bed linen, etc., can be 
included. The expense of tolling a church bell upon 
the decease of a person, or of sounding the passing 
bell 2 while the decedent is quitting the scenes of this 
life, if such practice is in vogue in any place now, is 
certainly not within the legitimate bounds of the ex- 
penses of the last sickness. 

1 Percival, adm'r, v. McVoy, Dudley (S. C.) 337 (1838). 

2 The passing bell, or soul bell, began to be rung as soon as 
it was apparent that death would ensue within a few minutes. 
It was an ancient custom, being common in the days of the 
monastery system, and Bede wrote of it. It was thought to 
ward off evil spirits from the departing soul. The more modern 
custom of tolling the bell immediately after the decease of a 
person is the later method of ringing the passing bell. Grose 
says : " The passing bell was anciently rung for two purposes : 
one to bespeak the prayers of all good Christians for a soul just 
departing; the other to drive away the evil spirits who stood 
at the bed's foot and about the house, ready to seize their prey, 
or at least to molest and terrify the soul in its passage ; but, 
by the ringing of the bell (for Dnrandus informs us that evil 
spirits are much afraid of bells), they were kept aloof; and the 
soul like a hunted hare, gained the start, or had what is by 
sportsmen called law. Hence, perhaps, exclusive of the addi- 
tional labour, was occasioned the high price demanded for toll- 
ing the greatest bell of the church, for, that being louder, the 
evil spirits must go farther off to be clear of its sound, by which 
the poor soul got so much the start of them ; besides, being 
heard farther off, it would likewise procure the dying man a 
greater number of prayers." 



LAST SICKNESS. 



5 



Who is Responsible for the Expenses ? — On general 
principles, a person, and also his estate, is liable only 
for such debts as he has contracted. He must have 
had the natural and legal ability to contract, and be 
shown to have contracted, either directly or through 
an agent. He and his estate are liable for every con- 
tract he legally makes for medical attendance, nurs- 
ing, etc. But when a man is unable, through physical 
or mental disability, to make these contracts in his 
last sickness, the extraordinary rules of the law of 
necessity arise and make such contracts as he would 
be presumed to make for himself if he was able to do 
so. This policy of the law arises from the necessity 
of the situation to prevent suffering and to insure to 
every person comfort and humane treatment. If this 
was not the law it would be difficult for people gen- 
erally to receive any medical treatment or nursing 
beyond that prompted by feelings of love or humanity, 
often involving even in such cases great sacrifices on 
the part of those who could not afford to give time 
and money to the relief of the sick. These extra- 
ordinary rules cast the payment for such services and 
expenses upon the subject's estate, and this insures 
comfort and good treatment and care in a man's 
extremity. In cases of this kind the person who 
engages the physician or the nurse or procures the 
medicines and other necessary articles is presumed to 
be the agent of the sick one. 

There is one exception to the rule that a person's 
estate must pay the expense of his or her last sick- 
ness. When some one other than the decedent has 
the duty of supporting him or her, that person must 
pay the cost. In the case of husband and wife, the 



G 



MORTUARY LAW. 



husband is personally chargeable with the expenses 
of her last sickness, and her estate is not responsible 
therefor, either primarily or secondarily. 1 

There is also a duty upon the members of each 
family to care for one another without pay. In the 
case of Williams v. Stonestreet et ux.f a son-in-law 
of the deceased was not allowed to recover for his 
services in nursing him, there being no contract, 
either express or implied, that the services should 
be paid for. 

Amount Allowed for Expenses. — The situation of 
the patient has a great deal to do with the amount of 
service to be rendered. If he is in a home of his own, 
which has the conveniences of housekeeping, etc., much 
less expense of procuring articles is necessary, than 
if he was sick in a place where things essential to his 
comfort or treatment would have to be purchased for 
his special use. The nature of the sickness is another 
important factor in the amount of care and treatment 
that is reasonably necessary and proper. A man that 
can move about can help himself in many ways, but 
one who is confined to his bed must be waited on. 
One who is delirious requires extreme care and atten- 
tion. Fine distinctions and niceties of arithmetic are 
out of place in the application of this law of necessity; 
it should be liberally applied, 3 for a man's estate can- 
not be better employed than in ministering to his 
comfort during his last earthly hours, and humanity 
demands that no one shall suffer. 

1 Freeman, ex'r, v. Coit et al., 27 Hun (N. Y.) 447 (1882) ; 
Moulton, adm'r, v. Smith, athn'r, 16 R. I. 126 (1888). 

2 Williams v. Stonestreet et ux., 3 Rand. (Va.) 559 (1825). 
8 Percival, admW, v. McVoy, Dudley (S. C.) 337 (1838). 



LAST SICKNESS. 



7 



Neither in England nor the United States can the 
proper amount to be allowed for expenses of this 
kind be determined by the rank of the decedent. 1 

If the contract price for the labor and articles was 
agreed upon by the decedent, who was legally able to 
contract, and whose estate is to pay the bills, that 
price must be paid if the estate is solvent. In all 
other cases, the court can only allow the market 
price of the labor and articles, which is to be found 
by a jury in the ordinary manner. The fair market 
price is the rule. 

Presumption of Death. — Although the subject of 
mortuary law deals only with actual death and dead 
bodies, the thought of the law of presumption of 
death naturally arises in connection therewith. In 
the early common law there was no such presump- 
tion. If a man was proven to have been alive, he 
was presumed to continue to live, 2 unless an un- 
natural age would thus be shown ; but even then 
there was no legal presumption. 

A statute was early enacted in England creating 
the presumption of death where parties had been out 
of the State or country, and unheard of by their 
family and acquaintances in the place of their last 
abode for seven years. In America this statute has 
the effect of common law, and some of the States 
have placed it among their statutes. The presump- 
tion arises when a person leaves his fixed home for 
temporary purposes, and is not again heard from for 
seven years by those who would naturally hear from 

1 Palmes et ah v. Stephens, R. M. Charlton (Ga.) 56 (1821). 

2 Ommaney v. Stillwell, 23 Beav. (Eng.) 328 (1856); Montgom- 
ery v. Bevans, 1 Sawyer (U. S.) 660 (1871). 



8 



MORTUARY LAW. 



him if he was alive. 1 But it does not arise in the case 
of a man who leaves the country as an absconder. 2 

This presumption does not admit that a person 
died before the expiration of the seven years, unless 
there is evidence that he was at some particular date 
previous thereto under a specific peril. 3 

Courts should be slow to grant letters of adminis- 
tration, and parties to receive them, when the decease 
of the subject of them is not clearly shown, as death 
only gives the court jurisdiction, as a general rule. 4 

1 Doe et al. v. Deakin et al, 4 Barn. & Aid. (Eng.) 433 
(1821); Rust v. Baker, 8 Sim. (Eng.) 443 (1837); Doe et al. v. 
Andrews et al., 15 Ad. & El., N. S., (Eng.) 760 (1850); Davie 
v. Briggs, 7 Otto (U. S.) 628 (1878) ; Ashbury v. Sanders, 8 
Cal. 62 (1857) ; Crawford v. Elliott, 1 Houst. (Del.) 465 (1857); 
Adams' ex'rs v. Jones' 1 adrnW, 39 Ga. 508 (1869); Ryan v. Tudor 
et al, 31 Kansas 366 (1884); Foulks v. Rhea, 7 Bush (Ky.) 
568 (1870) ; Jamison v. Smitk, 35 La. Ann. 609 (1883) ; Went- 
worthv. Wentworth, 71 Me. 72(1880); Tilly v. Tilly, 2 Bland. Ch. 
(Md.) 436 (1831); Loring v. Steineman, 1 Met. (Mass.) 204 
(1840); Commonwealth v. Thompson, 11 Allen (Mass.) 23 (1865); 
Bowditch v. Jordan, 131 Mass. 321 (1881) ; Stockbridge, petitioner, 
145 Mass. 517 (1888); Marden v. City of Boston, 155 Mass. 359 
(1892) ; Butrick v. Tilton, 155 Mass. 462 (1892) ; Spears v. Bur- 
ton, 31 Miss. 547 (1856); Thomas v. Thomas, 16 Neb. 553 (1884) ; 
Winship v. Conner, 42 N. H. 341 (1861); Hoyt v. Newbold, 45 
N. J. L. 219 (1883) ; Sheldon v. Ferris et al, 45 Barb. (N. Y.) 
124 (1865) ; University of North Carolina v. Harrison et al, 90 
N. C. 385 (1884); Young v. Hefner, 36 Ohio St. 232 (1880) ; 
Holmes et al. v. Johnson, 42 Pa. St. 159 (1862); Woods v. Woods' 
adm'r, 2 Bay (S. C.) 476 (1802) ; Shown v. Mackin, 9 Lea 
(Tenn.) 601 (1882) ; Hancock v. Metz, 7 Texas 178 (1851). 

2 Sensenderfer v. Pacific Mutual Life Insurance Co., 19 Fed. 
Rep. (Mo.) 68 (1882). 

» Davie v. Briggs, 7 Otto (U. S.) 628 (1878) ; In re Mutual 
Benefit Co., 34 Atl. Rep. (Pa.) 283 (1896). 

4 Shown v. Mackin, 9 Lea (Tenn.) 601 (1882). 



RECORD OF DEATHS AND BURIALS. 



9 



CHAPTER II. 

RECORD OF DEATHS AND BURIALS. 

Br the common law, no record of deaths or burials 
is required to be kept. Most of the States now pro- 
vide by statute for the registration of the decease of 
persons who die within their borders, and of others 
who are residents, but who have died without their 
limits, and of the burial of those who have been 
interred in the town, under a penalty for its non- 
observance. Under these laws the registration is by 
towns and cities, and the records are made up of all 
necessary facts for the identification of the deceased. 
Perhaps the most complete system of registration 
exists in Massachusetts By its aid, genealogies of 
families are traced and made certain by the large 
amount of data that is recorded, and the identifica- 
tion of each decedent is made certain. Physicians 
are required in many States to make return to the 
proper officer, in their respective localities, of the 
decease of persons whom they treated at the time of 
their death, and this return generally has to be as 
full and complete as the required record. If there 
was no physician in attendance upon the deceased, 
another's statement is sufficient. The enforcement 
of these statutes is made more compulsory by the 
fact that permits to bury issue from the registrar 



10 



MORTUARY LAW. 



of deaths and only upon such return of death being 
filed either by the physician or undertaker. 

The registration of burials is said to have been 
introduced into England in 1522 by Thomas Crom- 
well, who was then vicar general. 



INQUESTS. 



11 



CHAPTER III. 

INQUESTS. 

An inquest is an inquiry into the cause and manner 
of death of persons in certain cases. The purpose is 
twofold: to discover, first, the cause and manner 
of death, and, second, the person by whom it was 
caused, if the inquest shows that it was criminally 
produced. 

In what Cases Inquests are held. — In a broad sense, 
inquests are held upon persons who died of a violent 
or an unnatural death, or where there is suspicion of 
foul play in the cause of death. 1 It is not necessary, 
at common law, that an inquest be held in the case 
of a person who died with fever, apoplexy, or other 
disease, and neither does any statute probably require 
this. Neither is it proper to inquire into cases of 
sudden deaths, unless there is reasonable ground to 
believe that they are the result of violence or unnatu- 
ral means. The discretion of a sound mind and 
good judgment must be the measure of authority 
under which the coroner decides upon the necessity 
of the exercise of his office, the presumption being 
that he has acted in good faith and with sufficient 

1 Lancaster County v. Dern, 2 Grant's Cases (Pa.) 262 
(1852). 



12 



MORTUARY LAW. 



cause. 1 This presumption of good faith is only 
prima facie, however. 2 

When death results from any violence done to one 
person by another, although the life of the person 
injured is not by that means immediately terminated, 
the coroner must hold an inquest. 3 

Statutes now quite generally govern inquests, and 
designate the classes of cases in which investigation 
is to be made. 

Information of Death. — Under the old English 
law, an indictment would lie against a man who 
buried the body of a person who came to a violent 
death without notifying the proper authorities of 
the circumstances of the decease or finding of the 
body. 4 It was also a misdemeanor to allow a body 
to lie until putrefaction had set in before such 
notification. 

Time of holding Inquest. — The inquest should be 
held immediately after the body is found, or the 
person dies. 5 

If the body has been buried before the inquest 
is held, the coroner must have it exhumed, and 
this he may lawfully do within a reasonable time. 

1 Clark County v. Calloway, 52 Ark. 361 (1889); Lancaster 
County v. Holyoke, 37 Neb. 328 (1893); County of Lancaster v. 
Mishler, 100 Pa. St. 624 (1882). 

2 Jameson v. Board of Commissioners of Bartholomew County, 
64 Ind. 524 (1878); County of Lancaster v. Mishler, 100 Pa. St. 
624 (1882). 

8 Lancaster County v. Bern, 2 Grant's Cases (Pa.) 262 
(1852). 

4 Anonymous, 7 Mod. (Eng.), Case 15; Queen v. Clerk, Holt 
(Eng.) 167 (1702). 

5 King v. Soleguard et al, Andrews (Eng.) 231 (1738). 



INQUESTS. 



13 



Seven months is too long for it to lie buried, 1 unless 
probably it is a case in which there is suspicion of 
poisoning. But the coroner cannot exhume a body 
under any circumstances unless he complies with all 
the requirements of the law in regard thereto, as the 
summoning of a jury, etc. 2 

Place of holding Inquest. — The inquest must be 
held at the place where the decease of the person 
occurred, or the body is found. 

By Whom the Inquest is held. — The ancient, as 
well as modern, title of the officer who is empowered 
to hold inquests is coroner, though in some States 
he is a statutory official and given the name of 
medical examiner. Judges of inferior courts of law 
are sometimes given jurisdiction in such cases. A 
coroner, so called from coronator, the officer with 
whom the King was more immediately concerned, 
was a common law official of broad powers, the chief 
coroner in the kingdom being the lord chief justice 
of the King's Bench, who had general jurisdiction 
throughout the realm. In England, and generally 
in America, they are county officers, several being 
appointed for and in each of such districts. 

The choice of a coroner, etc., is provided for by 
statute or constitution in the American States, and 
in England he is elected by the freeholders in the 
county court. In early times, he must have been a 

» Queen v. Clerk, Holt (Eng.) 167 (1702); Dominus Bex v. 
Bond, 1 Strange (Eng.) 22 (1716). 

2 People v. Fitzgerald, 43 Hun (N. Y.) 35 (1887). On appeal, 
in the same case, the court of appeals questioned the correctness 
of the decision of the supreme court. People v. Fitzgerald, 105 
N. Y. 148 (1887). 



14 



MORTUARY LAW. 



knight, but now a person having landed property- 
sufficient to enable him to receive the grant of 
knighthood can be chosen to the office of coroner 
without being knighted. Such is the principal 
qualification of a coroner in England, where he is a 
more important officer than in America, being chosen 
for life, though liable to be removed at any time for 
cause. 

The Hearing. — The first requisite of an inquest is 
the presence of the body of the deceased. If the 
body has not been found, there cannot be a coroner's 
inquest ; 1 and the presence of the head of the body- 
alone is not sufficient. 2 

The inquest must be made by a jury of at least 
twelve men, summoned by the coroner from the 
vicinage of the place of death. 3 The coroner admin- 
isters the oath to them, and presides over them dur- 
ing the hearing, constituting a coroner's court, 
which is judicial in its character, 4 and of such a 
nature that it can legally sit on Sunday. 5 After the 
jury are duly charged by the coroner as to their 
duties, they proceed to take a " view " of the body, 
which should be as when found so far as possible, 6 
and hear evidence. The " view " is something more 

1 Queen v. Herford, 3 El. & El. (Eng.) 115 (1860). 

2 Dominus Rex v. Bond, 1 Strange (Eng.) 22 (1716). 

3 A juror, having been duly summoned, is liable to a fine for 
failing to attend the inquest. Ex parte James M' Annuity, T. U. 
P. Charlton (Ga.) 310 (1810). A coroner cannot take a juryman 
off the panel after he has been sworn. Dominus Rex v. Stikely, 
Holt (Eng.) 167 (1701). 

4 People v. Devine, 44 Cal. 452 (1872). 
6 Blaney v. State, 74 Md. 153 (1891). 

6 King v. Soleguard el al, Andrews (Eng.) 231 (1738). 



INQUESTS. 



15 



than to take a look at the body ; they must investi- 
gate and inspect it carefully and thoroughly. 1 They 
must seek to discover how the person came to his 
death, in all its particulars, when and where it 
occurred, who was present, by whom it was caused, 
if by a person, and the name and residence of the 
deceased; and to examine and describe all wounds, 
if any, their length, breadth, and depth, the kind of 
weapons that caused them, in what manner they 
caused them, on what part of the body the wounds 
were found, and whether or not the deceased died of 
the wounds. 2 

The coroner must receive the verdict of the jury 
in open court; the finding will be quashed if he 
takes it in their room. 3 

The jurors must sign their return, 4 and the coro- 

1 Lancaster County v. Holyoke, 37 Neb. 328 (1893). 

2 Domina Regina v. Clerk, 1 Salkeld (Eng.) 377 (1702) ; Queen 
v. Clerk, 7 Mod. (Eng.) 16 (1702). 

8 The Mitchelstown Inquisition, L. R. 22 Irish 279 (1888). 

4 The jurors may sign by their mark, if the coroner certifies 
that it was signed by them. State v. Evans, 27 La. Ann. 297 
(1875). If several of the jurors have the same Christian and 
surname, they need not be distinguished by their abode or occu- 
pation. Rex v. Nicholas et al, 7 C. & P. (Eng.) 538 (1836). 
If the jurors' names are written in full in the caption of the in- 
quisition, their Christian names may be abbreviated in their 
signatures. Rex v. Long, 6 C. & P. (Eng.) 179 (1833). In the 
case of the King v. Evett, 6 B. & C. (Eng.) 247 (1827), an in- 
quest was quashed because it omitted to state when the death 
occurred, or when the body was found, and the Christian names 
of the jurors were signed by their initials only, their names not 
being set out in the body of the inquisition. 

The concluding averment, "And so the jurors do say," need 
not show either time or place. Rex v. Nicholas et al., 7 C. & P. 
(Eng.) 538 (1836). 



16 



MORTUARY LAW. 



ner must certify to the whole of the inquest under 
his seal, together with the evidence thereon, to the 
next court held for the trial of murder cases. 1 If 
the jury finds that a person is probably criminally 
guilty of the death of the deceased, it is the duty of 
the coroner to commit such suspected party to jail 
for trial; and if forfeiture of his estate follows such 
a crime, the coroner must report concerning the char- 
acter and extent of his property. The report of the 
coroner takes the place of an indictment, and the 
suspected person is not entitled to be taken before a 
magistrate for preliminary examination. 2 Such is 
the rule and practice in England and in one or two 
States in the American Union, but in the Constitu- 
tion of the United States it is made imperative that 
a presentment or indictment of a grand jury be 
found. 3 

If the inquest shows the case to be criminal, and 
the party who is probably guilty is arrested, the 
coroner must bind over the witnesses who are to tes- 
tify for the government to appear at the trial of the 
prisoner. 4 

Immediately after the inquest the body must be 
interred by the coroner or others. 

Autopsy. — If the jury find that it is necessary to 

1 The certificate can be amended in matters of form. Queen 
v. Shepherd, 11 Mod. (Eng.) 271 (1710). The verdict is admis- 
sible as evidence in civil cases to show that the deceased com- 
mitted suicide. Pyle et al., ex'rs, v. Pyle et al., 158 111. 289 
(1895). 

2 Er parte Anderson, 55 Ark. 527 (1892). See Blaney v. 
State, 74 Md. 153 (1891). 

8 United States Constitution, Fifth Amendment. 

4 Regina v. Taylor et al, 9 C. & P. (Eng.) 672 (1840). 



INQUESTS. 



17 



the proper understanding of the condition of a dead 
body that a post mortem examination be made, the 
coroner is authorized to employ a physician or sur- 
geon to make it, 1 and he has the choice of the physi- 
cian or surgeon. 2 A physician engaged by a coroner 
for an autopsy or examination is not bound to know 
that the jury deem a post mortem examination neces- 
sary ; he has a right to rely upon the official act of 
the coroner. 3 The coroner can permit whom he 
pleases to be present at such an examination ; and 
a person under accusation cannot claim the right 
to be there. 4 

If the services of a chemist are needed to make 
an analysis of the stomach of a dead person, in cases 
where poisoning is suspected, the coroner has the 
authority to engage one, and may choose one who 
resides within or without the county, as he pleases. 5 

Expenses. — It is within the province of the county 
court to determine whether the case is one for the 

1 St. Francis County v. Cummings, 55 Ark. 419 (1892) ; 
County Commissioners of Pueblo v. Marshall et ah, 11 Col. 84 
(1887) ; Jameson v. Commissioners of Bartholomew County, 64 
Ind. 524 (1878) ; Young v. College of Physicians and Surgeons 
et al, 81 Md. 358 (1895); Allegheny County v. Wait, 3 Pa. St. 
462 (1846) ; Commonwealth v. Harmon, 4 Pa. St. 269 (1846) ; 
County of Northampton v. Innes, 26 Pa. St. 156 (1856). 

2 Commissioners of Dearborn County v. Bond, 88 Ind. 102 
(1882) ; County of Allegheny v. Shaw et al., 34 Pa. St. 301 
(1859). 

8 County Commissioners of Pueblo v. Marshall et al., 11 Col. 84 
(1887). 

* Crisfield v. Ferine, 15 Hun (N. Y.) 200 (1878); affirmed 
by the court of appeals, Crisfeld v. Ferine, 81 N. Y. 622 (1880). 

s Commissioners of Barlholomeiv County v. Jameson, 86 Ind. 
154 (1882). 

2 



18 



MORTUARY LAW. 



expense of which the county is liable. 1 In all cases 
where the coroner has acted in good faith and with 
ordinary judgment he should be allowed his fees. 2 
But he is not entitled to compensation unless he has 
summoned a jury, and proceeded as the law directs; 
as otherwise he has acquired no jurisdiction, and 
therefore no right to act in the case. 3 A reason- 
able remuneration for the services of the physician 
performing a post mortem examination must be paid. 4 
If there is no special agreement between the physi- 
cian and the coroner as to who shall pay the former 
for his professional services, the coroner alone can 
be sued. The physician cannot bring an action 
against the county therefor. The coroner must put 
the bill into his account against the county. 5 A 
physician who is employed to treat the poor of an 
asylum when sick is entitled to a reasonable fee for 
making an autopsy on the body of one of the paupers 
who came to his death by a casualty, when so re- 
quested by the coroner. A physician who has per- 
formed such an autopsy is not entitled to extra 

1 Clark County v. Calloway, 52 Ark. 361 (1889). 

2 County of Lancaster v. Mishler, 100 Pa. St. 624 (1882). 
s Lancaster County v. Holyoke, 37 Neb. 328 (1893). 

4 St. Francis County v. Cummings, 55 Ark. 419 (1892); Clark 
County v. Kerstan, 60 Ark. 508 (1895); Jamesonv. Commissioners 
of Bartholomew County, 64 Ind. 524 (1878); Allegheny County v. 
Watt, 3 Pa. St. 462 (1846) ; Commonwealth v. Harman, 4 Pa. St. 
269 (1846); County of Northampton v. Innes, 26 Pa. St. 156 
(1856). 

5 Van Hoevenbergh v. Habrouck, coroner, 45 Barb. (N. Y.) 
197 (1865). 

6 Lang v. Commissioners of Perry County, 121 Ind. 133 
(1889). 



INQUESTS. 



19 



compensation as an expert witness beyond the regu- 
lar witness fee. 1 Chemists performing analyses at 
the request of coroners, for the purposes of inquests, 
are also entitled to reasonable compensation for such 
services. 2 

Counties are generally responsible for the expenses 
of inquests. 3 By statute, in some of the American 
States, valuables on the bodies of persons who are 
found dead may be appropriated to the payment of 
the expense of the inquest held on such bodies; as 
for instance, in Indiana. 

Interfering with Inquests. — It is a misdemeanor to 
burn or otherwise dispose of a dead body, with intent 
thereby to prevent the holding of an inquest, in a 
proper case, as it is an act obstructing the coroner 
in his duties. 4 

Second inquests. — A second inquest cannot be 
legally held unless the first is quashed. 5 

1 Clark County v. Kerstan, 60 Ark. 508 (1895). 

2 Commissioners of Bartholomew County v. Jameson, 86 Ind. 
154 (1882). 

8 St. Francis County v. Cummings, 55 Ark; 419 (1892); Clark 
County v. Kerstan, 60 Ark. 508 (1895) ; Jameson v. Commission- 
ers of Bartholomew County, 64 Ind. 524 (1878) ; Commissioners 
of Dubois County v. Wertz, 112 Ind. 268 (1887). 

4 Queen v. Price, L. R. 12 Q. B. Div. (Eng.) 247 (1884); 
Queen v. Stephenson et al, L. R. 13 Q. B. Div. (Eng.) 331 
(1884). 

6 Regina v. While et al, 3 El. & El. (Eng.) 137 (1860). 



20 



MORTUARY LAW. 



CHAPTER IV. 

MUTILATION OF DEAD BODIES. 

It is the privilege and duty of certain relatives of 
deceased persons, as will be seen in Chapter VII., to 
preserve the remains from indecent and improper 
treatment, as well as to bury them. The law will 
protect this right and duty. Statutes, in many of 
the American States, fix the criminal liability of 
those who are guilty of its violation. For an unlaw- 
ful mutilation of the remains, 1 a civil action will 
lie ; and although no actual pecuniary loss has been 
suffered, substantial damages may be awarded for 
the injury to the feelings and mental sufferings 
naturally resulting directly and proximately from 
the wrongful act. 2 

When the law demands that mutilation of a dead 
body shall take place, the physician who commits 
the act is not responsible. As, for instance, where 
a physician makes a post mortem examination of a 
dead body, in the usual manner, at the request of 
a coroner acting officially, such physician is not 
liable in an action for damages to the family of the 

1 Foley v. Phelps, 37 K Y. S. Rep. 471 (1896). This suit was 
brought by the widow of the deceased. 

2 Larson v. Chase, 47 Minn. 307 (1891). 



MUTILATION OF DEAD BODIES. 21 

deceased for the mutilation of the body done without 
their consent. 1 Also, where the ordinances of a city 
require a physician's certificate of the cause of death 
before burial of the body, and a post mortem exami- 
nation is necessary to such certificate, an action for 
damages for mutilating the body will not lie in favor 
of the heirs of the deceased against the physician 
who makes the examination, nor the undertaker who 
requested it to be made, the autopsy being performed 
in a decent and scientific manner, due regard being 
had to the sex of the deceased, without undue expos- 
ure, and with respect to the feelings of the relatives 
who did not consent. 2 

The common form of mutilation of the dead is 
by dissection. This is the result of the study of 
anatomy, which began as early as the beginning of 
the seventeenth century. By an old statute in Eng- 
land, 3 the body of a person executed for wilful 
murder was caused to be delivered to the surgeons 
to be publicly dissected and anatomized; the court 
could direct that the body be hung in chains, but 
finally to be dissected. 4 This was the only means, 
probably, of obtaining human anatomies in England 
down to 1832. The demand for them became so 
great that in some cases persons were murdered for 
their bodies. Professional men had to rely prin- 
cipally on body-snatchers for subjects for dissection, 

1 Young v. College of Physicians and Surgeons et al., 81 Md. 
358 (1895). 

2 Cook et al. v. Walley Sf Rollins et al., 1 Col. App. 163 
(1891). 

s 25 Geo. II., c. 37. 

4 Blackstone's Commentaries, book iv., pages 202, 376. 



22 



MORTUARY LAW. 



both in England and America. The bodies of those of 
whom post mortem examinations were of the greatest 
interest and value to men of science were obtained 
in spite of almost insuperable difficulties and great 
expense. The increase of learning and investigation 
in modern times has made necessary the easier and 
readier means of obtaining human skeletons; and 
the law has been statutorily changed to aid science 
in this respect. Under prescribed circumstances 
and conditions, the dead bodies of more criminals 
than heretofore, and of some paupers, can be legally 
used for dissection. 

The law in England against body-snatching was 
so severe that parties engaged in that business 
charged great prices for obtaining subjects. This 
fact occasionally led impecunious people, while 
alive, to endeavor to sell their own bodies to sur- 
geons, the title to pass upon their decease, but the 
price to be paid periodically as long as the subject 
remained alive. This was probably sometimes 
accomplished, and the agreement duly carried out. 
The legal objection to such a contract arose from 
the fact that dead bodies are not property, and can- 
not be conveyed or contracted for. There have been 
instances of men in their wills bequeathing their 
remains for purposes of dissection, but to this the 
same objection was present. Relatives have rights, 
also, which even the deceased cannot dispose of. 



PROPERTY IN DEAD BODIES. 



23 



CHAPTER V. 

PROPERTY IN DEAD BODIES. 

Dead bodies of human beings are not property in 
the common meaning of the term, that is, in the 
commercial sense, and can neither be conveyed, 
attached, nor taken on execution. 1 Neither can 
they be inherited. 2 In ancient, and even in modern, 
times it was the practice in some places to arrest 
and detain dead bodies for debt; but now all such 
acts are forbidden. 3 

In the case of Bogert v. City of Indianapolis^ the 
proposition is laid down "that the bodies of the 

1 Regina v. Sharpe, Dears. & Bell (Eng.) 160 (1857) ; Regina 
v. Sharpe, 40 Eng. L. & Eq. (Eng.) 581 (1857); Foster v. Dodd 
el al, 8 B. & S. (Eng.) 842 (1867) ; Williams v. Williams, L. R. 
20 Ch. Div. (Eng.) 659 (1882); Weld v. Walker et al., 130 
Mass. 422 (1881); Guthrie v. Weaver, 1 Mo. App. 136 (1876); 
Hadsell et al. v. Hadsell et al., 7 Ohio C. C. 196 (1893); Pierce 
et ux. v. Proprietors of Swan Point Cemetery et al., 10 R. I. 227 
(1872). 

2 Matter of Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 
155 (1837); Hadsell et al. v. Hadsell et al, 7 Ohio C. C. 196 
(1893). 

8 Jones v. Ashburnham et ux., 4 East (Eng.) 460 (1804) ; Queen 
v. Fox et al., 2 Q. B. (Eng.) 246 (1841); Pierce et ux. v. Pro- 
prietors of Swan Point Cemetery et al., 10 R. I. 227 (1872). 

4 Bogert v. City of Indianapolis, 13 Ind. 134 (1859). 



24 



MORTUARY LAW. 



dead belong to the surviving relations, in the order 
of inheritance as property, and that they have the 
right to dispose of them as such, within restrictions 
analogous to those by which the disposition of other 
property is regulated." The court would undoubt- 
edly limit the proposition to the burial and custody 
of the body prior thereto, and the subsequent preser- 
vation and care of the remains, which in fact were 
the only questions in issue in the case. 

There are certain rights, however, which relatives 
have in the remains of human beings, before they 
are interred in the earth, which have some of the 
aspects of property rights, and enable them to be 
treated as property in certain respects. These rights 
are those incident to the care and preservation of the 
remains in a proper and decorous manner. They are 
somewhat similar to the rights and duties of a bailee 
in and to a chattel. The persons having charge of 
bodies hold them in trust; and this trust the court 
of equity will regulate and protect. 1 

After burial human remains become a part of the 
earth to which they have been committed, "earth to 
earth, dust to dust," and the only civil action that 
can be brought, at common law, for disturbing them, 
however indecently or impiously they have been 
treated, is trespass on the soil in which they are 
buried, quare clausum f regit. 2 

The deceased has some authority over the disposi- 
tion of his own remains, and it is held in America, 
to a limited extent, can dispose of them by his last 

1 Pierce el ux. v. Proprietors of Swan Point Cemetery et al., 10 
R. I. 227 (1872). 

2 Meagher v. Driscoll, 99 Mass. 281 (1868). 



PROPERTY IN DEAD BODIES. 



25 



will. 1 In England, however, it is held that testa- 
mentary directions for such disposition cannot be 
enforced. 2 

1 Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 10 
R. I. 227 (1872). 

2 Williams v. Williams, L. R. 20 Ch. Div. (Eng.) 659 (1882). 



26 



MORTUARY LAW. 



CHAPTER VI. 

CUSTODY OF DEAD BODIES. 

There is only one kind of possession of human 
remains that any person can have, and that is in the 
nature of a bailment for the purpose of the funeral 
services and the burial, and for their preservation 
and protection both before and after interment; 
and the right is to possess the body in the same 
condition it was in when death occurred. 1 This is 
a trust so sacred that if its duties are neglected, or 
it is indecently or impiously performed, or abused, 
the courts will regulate and control its exercise. 
All those persons who are allied to the decedent by 
the ties of family or of friendship are interested, and 
can enforce the trust. 2 

License to enter Premises to take Custody. — A man 
has a license to enter upon the premises of another 
for the purpose of assuming custody and removing 
his wife's remains for the funeral ceremonies and 
burial, if he has made a demand therefor and been 
refused. 3 

To whom Custody belongs. — Such custody belongs 
to those most intimately and closely connected with 

1 Foley v. Phelps, 37 N. Y. S. Rep. 471 (1896). 

2 Larson v. Chase, 47 Minn. 307 (1891). 

« Neilson v. Brown et al, 13 R. I. 651 (1882). 



CUSTODY OF DEAD BODIES. 



27 



the deceased by domestic ties, who, of all other 
persons, ought to render the last sacred services to 
the remains after death. The universal doctrine is, 
that if the deceased was married the right of posses- 
sion belongs to the surviving husband or wife. They 
are certainly nearer to each other in point of rela- 
tionship and affection than any other persons, one 
being the other's constant companion during life, 
and they, being bound to each other by the closest 
ties on earth, should have the paramount right to 
render these last sad services for each other. This 
is particularly true if they are living together in that 
relation at the time one of them dies. 1 But the 
custody of the husband or wife ends with the burial, 
that being the consummation of the duty. 2 

After the husband and wife, the children next 
have the right of custody, and that equally. 3 

While it is true that, at common law, only the 
relatives or friends of the deceased are entitled to 
the possession of the remains, it is not always so 
under modern statutes. In some States the legis- 
lature has thrust the duty of burial upon utter 
strangers; and certainly in such cases the statutes 
must be construed strictly. The persons who have 
this extraordinary duty are entitled to the custody 
of the remains until their duty, which is that of 
burial, is performed, but no longer. A common 

1 Larson v. Chase, 47 Minn. 307 (1891) ; Hadsell et al. v. Had- 
sell et al, 7 Ohio C. C. 196 (1893). 

2 Wynkoop v. Wynkoop, 42 Pa. St. 293 (1862). 

3 Eegina v. Sharpe, 40 Eng. L. & Eq. 581 (1857); Larson 
v. Chase, 47 Minn. 307 (1891); Smiley et al. v. Bartlett et al, 6 
Ohio C. C. 234 (1892). 



28 



MORTUARY LAW. 



case is that where coroners bury the bodies of 
strangers and others, upon whose remains inquests 
have been held. Another case is that, for instance, 
existing under the laws of Arizona, where a person 
dies or is found dead upon a sailing vessel, the cap- 
tain of the craft thus having the duty of the burial 
of the remains put upon him. 1 

Coroners, for the purposes of an inquest, have 
the right of possession against every one else, but 
only for the purposes and for the time of the 
inquest. 

The personal representatives of the deceased, as 
such, by the American law, have no right to the 
custody of the remains. 2 The English courts hold 
the other way, however. 3 

Actions for Deprivation of Custody. — The right of 
custody of the remains of a relative is guarded so 
carefully that the law will give substantial damages 
for the deprivation of such right on the ground of 
distress of mind. The leading case is that of Reni- 
han et al. v. Wright et al.,* tried in the Indiana courts 
in 1890. An undertaker, having been engaged by 
the parents of a deceased girl to keep the remains 
until they were ready to inter the same, allowed the 
body to be forwarded to Ohio for burial, without the 
knowledge or consent of the parents, and refused to 
inform them as to where the remains were, further 
than to say, "Your child is in Ohio." The parents 

1 Arizona Statutes, Penal Code (1887), § 493, cl. 4. 

2 Renihan et al. v. Wright et al., 125 Ind. 536 (1890). 

8 Queen v. Fox et al, 2 Q. B. (Eng.) 246 (1841) ; Williams v. 
Williams, L. R. 20 Ch. Div. (Eng.) 659 (1882). 

4 Renihan et al. v. Wright et al., 125 Ind. 536 (1890). 



CUSTODY OF DEAD BODIES. 



29 



brought an action against the undertaker, and recov- 
ered heavy damages. The court said: "When the 
appellants contracted with the appellees to safely 
keep the body of their daughter until such time as 
they should desire to inter the same, they did so 
with a knowledge of the fact that a failure on their 
part to comply with the terms of such contract would 
result in injury to the feelings of the appellees, and 
they must, therefore, be held to have contracted with 
reference to damages of that character, in the event 
of a breach of the contract on their part. " 



30 



MORTUARY LAW. 



CHAPTER VII. 

DISPOSITION OF DEAD BODIES. 

After the death of the body there must be some 
disposition made of it. Putrefaction soon begins; 
and for the sake of the public health, common 
decency, and the feelings of the relatives and friends 
of the deceased, the remains must immediately be 
cared for. Who can do this, who must do it, and 
where, when, and how it is to be done, are questions 
that arise for settlement. 

THE RIGHT OF BURIAL. 

The right of burial is not strictly the right to 
inter a dead body, or to have one's own body placed 
in the ground. That is generally understood to be 
the meaning of the term, because burial is the usual 
manner of disposing of human remains. But it has a 
different and a broader construction ; it means rather 
the right of proper and legal disposition, whatever 
such disposition may be. 

Right of the Deceased. — A dead man has rights, 
the greatest of which is called Christian burial. It 
is a universal desire of mankind that some service 
be had over the remains of every person before their 
final disposition, and that this rite be of a religious 



DISPOSITION OF DEAD BODIES. 



31 



character. 1 The word Christian is not a denomina- 
tional term, as here used, but means some proper 
recognition of the nature of man and the solemnity 
of his entrance into the world beyond. Christian 
burial, in this sense, is a term applicable to the 
Hindu, Mohammedan, and Jew, as well as to the 
Christian. 2 He has the right to have his remains 
kept secure from ill treatment, from undue exposure, 
and from dishonor. All of these rights are, like 
other privileges, subject to the exigencies of the 
public, as the necessity for post mortem examinations 
and dissections, 3 exhumation, etc. 

A pauper has the same rights in these respects as 
the man of position and affluence. The person 
under whose roof he dies cannot cast his dead body 
out, or expose it to violation, or carry it to the 
grave uncovered. 4 

But none of these rights can be enforced by the 
deceased, of course, and neither by his legal repre- 
sentatives after the final disposition of the body, 
except perhaps so far as they receive directions in 
the will of the decedent. This leads the courts 
sometimes to say that a corpse is not capable of 
rights. 5 Within certain limits, the American law 
is, that a person may by his last will predispose of 

1 Queen v. Stewart et al., 12 Ad. & El. (Eng.) 773 (1840); 
Sullivan v. Horner, admW, 41 N. J. Eq. 299 (1886); McCue, adm'r, 
v. Garvey, 14 Hun (N. Y.) 562 (1878). 

2 Queen v. Price, L. R. 12 Q. B. Div. (Eng.) 247 (1884). 

8 Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 10 
R. I. 227 (1872). 

* Queen v. Stewart et al., 12 Ad. & El. (Eng.) 773 (1840) ; 
Wynkoop v. Wynkoop, 42 Pa. St. 293 (1862). 

6 Queen v. Price, L. R. 12 Q. B. Div. (Eng.) 247 (1884). 



32 



MORTUARY LAW. 



his remains ; 1 but the English courts hold that no 
direction of that kind in a will can be enforced. 2 

In England, a person has the right to be interred 
in the parish cemetery of the parish where he then 
lived and died. 3 

Right of the Relatives. — The right of burial which 
the relatives of the deceased have includes the right 
of separate burial, and the selection of the place of 
interment. 4 This right can be exercised but once, 
unless there is sufficient reason shown for making 
the change of place of interment. 5 

The right of burial ends with the refusal or neglect 
to exercise it. 

The right of the relatives as to the burial and pro- 
tection of the decedent's body can be controlled in 
some degree by the terms of his or her last will, if 
there be one. 

In England, the relatives have the right to bury 
the deceased in the parish cemetery of the parish 
where he then lived and died. 6 Even Dissenters can 
bury their deceased children in the churchyard of 
the Established Church of England. 7 

Relatives of a deceased pauper can have the re- 

1 Ruggles" Report, 4 Bradf. (N. Y.) 503 (1856). 

2 Williams v. Williams, L. R. 20 Ch. Div. (Eng.) 659 (1882). 
8 Queen v. Stewart et al, 12 Ad. & El. (Eng.) 773 (1840). 

4 Sweeney v. Muldoon, adm'r, 139 Mass. 304 (1885) ; Smiley 
et al. v. Barllett et al., 6 Ohio C. C. 234 (1892). 

6 Guthrie v. Weaver, 1 Mo. App. 136 (1876); Wynkoop v. 
Wynkoop, 42 Pa. St. 293 (1862). 

8 Queen v. Stewart et al, 12 Ad. & El. (Eng.) 773 (1840) ; 
Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 10 R. I. 
227 (1872). 

T Kemp v. Wickes, 3 Phil. (Eng.) 264 (1809). 



DISPOSITION OF DEAD BODIES. 



33 



mains disposed of in Christian burial by the authori- 
ties of the municipality of which the decedent was a 
resident. 1 

It is only the near relatives that have this right of 
burial ; and the nearer they are in relationship, the 
greater their right. The right of the surviving hus- 
band or wife, when one of them dies, to bury the 
body of the deceased, is paramount to that of all other 
persons. 2 The survivor has a greater interest in the 
place of interment than the other relatives, as he or 
she expects to lie there too ; and the next of kin will 
probably have burial lots of their own, it may be in 
other places. 3 In the case of Wynkoop v. Wynkoop,* 
the court held that after burial the widow of the 
deceased had no control over the remains. In its 
opinion, the court supposes a case where a woman 
has had three husbands, who all died in wedlock 
before her, and says that she should not be burdened 
with the duty and vested with the charge of their 
three bodies against the expressed wishes of the 
blood relations and next of kin of each. 

Next to the right of the husband and wife is that of 
the next of kin ; and the order in which they have 
this right is in the order of their relationship or 
right of inheritance. 5 The class having the first 
right is that of the children of the deceased; they 

1 Regina v. Vann, 2 Den. C. C. (Eng.) 325 (1851). 

2 Lakin v. Ames et ah, 10 Cush. (Mass.) 198 (1852) ; Durett 
v. Walker et al, 130 Mass. 422 (1881) ; Larson v. Chase, 47 Minn. 
307 (1891) ; Hadsell et al. v. Hadsell et al, 7 Ohio C. C. 196 
(1893) ; Hackett v. Hackett, 18 R. I. 155 (1893). 

3 Hadsell et al. v. Hadsell et al, 7 Ohio C. C. 196 (1893). 

4 Wynkoop v. Wynkoop, 42 Pa. St. 293 (1862). 

6 Bogert v. City of Indianapolis, 13 Ind. 134 (1859). 
3 



84 



MORTUARY LAW. 



have the right equally as a class, and not indi- 
vidually. 1 

The class next to the children is that of the 
parents of the deceased. 

If these persons or classes are unable to act in the 
premises because of disability, those next having 
the right take their places. 2 

When the individuals composing these classes fail 
to agree as to place of burial, and on other kindred 
questions, they may appeal to the court of equity to 
determine the matter, upon all the circumstances. 3 

Right of Personal Representatives. — The executor 
of the will of the deceased has some degree of right 
to bury the dead body of his testator; but how 
extensive that right is, and under what circum- 
stances it may be exercised, are still open questions. 4 

Right of Reinterment. — Generally, the right of 
burial does not extend to a second burial; that is, it 
does not allow the party having the right of burial 
to move the body about from place to place. The 
remaining right is that of preservation and protec- 
tion of the remains. 6 However, where good cause is 
shown, the court will permit a removal ; and this 
permission is not founded on the right of those who 
have the right of burial, — if it were they would not 
be compelled to seek authority from the court when 
the next of kin objected, — but is in the discretion 

1 Regina v. Sharpe, Dears. & Bell (Eng.) 160 (1857); Smiley 
et al. v. Bartlelt et al., 6 Ohio C. C. 234 (1892). 

2 Jenkins v. Tucker, 1 H. Bl. (Eng.) 90 (1788). 

8 Smiley et al. v. Bartlelt et al, 6 Ohio C. C. 234 (1892). 

4 Ferrin v. Myrick, adm'r, 53 Barb. (N. Y.) 76 (1869). 

5 Guthrie v. Weaver, 1 Mo. App. 136 (1876). 



DISPOSITION OF DEAD BODIES. 



35 



of the court. In the case of Weld v. Walker et al., 1 
where the dead body of a married woman was 
interred in the lot of a third person, with the hus- 
band's consent, given when he was in great distress 
of mind and on the supposition that the burial was 
to be merely temporary, the court permitted the hus- 
band, though three years had elapsed since the 
burial, to remove the remains, coffin, and tombstone 
to his own land, and restrained the owner of the lot 
from interfering with the removal. A strong argu- 
ment in favor of such change was the fact that where 
his wife was buried the husband had no right to care 
for and adorn her grave, nor to bury any one by her 
side, or even to have his own remains lie there. 
But the court said that, where remains have been 
interred in the lot of another, with the free and full 
approval of the person having the right of burial, it 
would not allow them to be disturbed without the 
consent of the owner of the lot. In the case of 
Peters v. Peters et al., 2 where a woman permitted the 
body of her deceased husband to be buried in her 
father's lot, the request for liberty to transfer the 
remains was not granted. A similar case was that 
of Pierce et ux. v. Proprietors of Sivan Point Cemetery 
et a?., 3 where a widow claimed the right to remove 
the remains of her deceased husband from one place 
of burial to another, against the wishes of his chil- 
dren. In the case of Guthrie v. Weaver,* the father 

1 Weld v. Walker et al, 130 Mass. 422 (1881). 

2 Peters v. Peters et al, 43 N. J. Eq. 140 (1887). 

3 Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 10 
R. I. 227 (1872). 

4 Guthrie v. Weaver, 1 Mo. App. 136 (1876). 



3G 



MORTUARY LAW. 



of the deceased married woman had buried her 
remains, and it was held that the husband of the 
deceased had no right to remove them to a place of 
his own choosing. In the case of Wynkoop v. Wyn- 
koop, 1 which was a bill in equity brought by a 
widow against the brother of her deceased husband 
and his mother, for liberty to remove the remains 
from the lot of the mother, in which they had been 
interred, to another cemetery, claiming the right to 
do so as the administratrix of his estate and as his 
widow, the court refused its permission. 

Legal Nature of the Right of Burial. — The right to 
inter a corpse is a legal one, and it will be protected 
by the courts of law. 2 

THE DUTY OP BURIAL. 

It has been argued that the personal representa- 
tives of the deceased have the duty of his burial ; but 
this cannot be true, as the appointment of an admin- 
istrator comes after the burial takes place. An 
executor occupies a position which is a little different 
from that of an administrator, as he is nominated in 
the will, and generally knows of his nomination 
before his testator dies; but even then he has no 
legal power and authority to act until the will is 
proved and his nomination is confirmed. 3 One who 
is named in the will as executor may bury the body 
of the testator; 4 but it is doubtful if executors have, 

1 Wynkoop v. Wynkoop, 42 Pa. St. 293 (1862). 

2 Ruggles' Report, 4 Bradf. (N. Y.) 503 (1856). 

8 Sullivan v. Horner, adm'r, 41 N. J. Eq. 299 (1886) ; Black- 
stone's Commentaries, book ii., page 512. 

4 Ferrin v. Myrick, adm'r, 53 Barb. (N. Y.) 76 (1869). 



DISPOSITION OF DEAD BODIES. 



37 



at common law, the right, as such representatives, 
to the custody of the remains. 1 In the case of 
Williams v. Williams, 2 the executor acted with the 
consent of the widow and the son of the deceased 
testator; and the court decided that in such a case 
the executor had the right of possession of, and the 
duty of burying, the body of the deceased. This 
statement probably arises from the mistaken suppo- 
sition that, as the legal representatives must finally 
pay the expenses of the funeral and interment, they 
are the ones upon whom the duty of burial rests. 
The duty of burial and the duty of paying the 
expenses of the funeral and interment are not 
the same. In many cases, the person upon whom 
the duty of burial is cast is not obliged to pay the 
expense of it. 

A husband is bound to bury his deceased wife, and 
a wife to bury her deceased husband. 3 And the duty 
of burial in such cases ends with the interment. 4 

Children must bury their parents, and parents 
their children. This is subject to the duty of hus- 

1 Renihan et al. v. Wright et al., 125 Ind. 536 (1890). 

2 Williams v. Williams, L. R. 20 Ch. Div. (Eng.) 659 (1882). 
" Jenkins v. Tucker, 1 H. Bl. (Eng.) 90 (1788) ; Willis v. 

Jones et al., assignees, 57 Md. 362 (1881) ; Durell v. Hayward, 9 
Gray (Mass.) 248 (1857); Cunningham v. Rearalon, 98 Mass. 538 
(1868); Weld v. Walker et al., 130 Mass. 422 (1881); Sullivan v. 
Horner, admW, 41 N. J. Eq. 299 (1886) ; McCue, adm'r, v. Garvey, 
14 Hun (N. Y.) 562 (1878); Estate of John S. Hill, 4 Dem. 
(N. Y.) 69 (1886) ; Wynkoop v. Wynkoop, 42 Pa. St. 293 (1862) ; 
Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 10 R. I. 
227 (1872). See Constantinides v. Walsh, exr, 146 Mass. 281 
(1888). 

* Wynkoop v. Wynkoop, 42 Pa. St. 293 (1862). 



88 



MORTUARY LAW. 



band and wife to inter the remains of the one who 
dies first, if the deceased leaves a husband or wife. 1 

When a person upon whom the duty of burial rests 
is incapable of acting, by disability or absence, the 
duty falls upon the next one having it, as though the 
person having the duty first never had it. 2 

Where there are none who claim the right by rela- 
tionship, it is the duty of those under whose roof a 
person dies to provide sepulture for the remains. 
The dead body cannot be cast out, or exposed to 
violence, or so placed as to offend the feelings or 
endanger the health of the living. It must be car- 
ried to the grave covered, and be given Christian 
burial. 3 

If any person upon whom the duty of burial is cast 
is too poor to incur the expense, and has not the 
means to procure the necessary coffin and service, he 
is excused from the duty. He is not obliged to 
borrow money, and thus create a debt for the same. 
In such a case, and in cases of strangers, etc., the 
duty is thrust upon the pauper authorities. 4 As the 
chief justice, Lord Campbell, said in the opinion of 
the court in the case of Bregma v. Vann, 5 a pauper 
parent is not obliged to bury his deceased child if he 
is not financially able; "he cannot sell the bod}-, 
put it into a hole, or throw it into the river." This 
was a case where the father of a deceased child had 

1 Jenkins v. Tucker, 1 H. Bl. (Eng.) 90 (1788). 

2 Jenkins v. Tucker, 1 H. Bl. (Eng ) 90 (1788). 

8 Queen v. Stewart et at., 12 Ad. & El. (Eng.) 773 (1840); 
Wynkoop v. Wynkoop, 42 Pa. St. 293 (1S62). 

4 Regina v. Vann, 2 Den. C. C. (Eng.) 325 (1851). 
6 Regina v. Vann, 2 Den. C. C. (Eng.) 325 (1851). 



DISPOSITION OP DEAD BODIES. 



39 



not the financial means to provide burial for the 
remains, and he removed the body from his house to 
a yard in the neighborhood, where it lay decompos- 
ing, emitting a strong stench, and constituting a 
nuisance. He was offered a loan of money where- 
with to defray the expense of burial, but he declined 
to incur a debt. He was indicted 1 for his failure 
to bury the child, but the court decided that his duty 
was coextensive with his ability to do so, and that 
he was not obliged to contract a debt in order to 
perform that duty. 

Many of the American States have prescribed by 
statute the classes of persons who must care for 
human remains, and have them properly interred or 
otherwise legally disposed of. Some of the States 
make it a criminal offence not to perform the duty, 
and those who then do it can recover of those who 
ought to have attended to the burial even as much 
as three times the amount of the expense of the 
same. 

By the canon law, which prevailed over a large 
part of Europe, every one was to be buried in the 
parish churchyard, or in his ancestral sepulchre, if 
any, or in such place as he might select. A widow 
was to be buried with her last husband, if she had 
had more than one. The English law was similar. 2 

MANNER OF DISPOSITION. 

In the early barbaric times, when men were nomads 
to a great extent, the bodies of their dead relatives 

1 The indictment is given in full with the report of the case. 

2 Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 10 
R. I. 227 (1872). 



40 



MORTUARY LAW. 



and companions were left as and where they died, 
without protection from the elements or wild animals 
and birds. There were no special sanitary reasons 
why their treatment should be otherwise, and the 
sentimental influences were too meagre to avail any- 
thing. Later, some threw their dead into the sea, 
and thought that by so doing they had got rid of 
both ghost and body. Some of the ancient Scythians 
are said to have eaten their dead. The people of 
Asian Tibet either buried their dead in the ground, 
threw them into the river, exposed them to beasts of 
prey, or cremated them, as the lamas decreed in 
each instance. In either case the hair was first 
plucked out from the top of the head, in order, as 
they professed to believe, to facilitate the transmi- 
gration of the soul. The body was then cut into 
pieces, and the bones broken into fragments by men 
who made such work their profession. 

It is the right of every person to have a decent 
and conventional disposition made of his remains, 
and to dispose of them otherwise, as, for instance, to 
throw them into the street or river, is an indictable 
offence. 1 The body must not be disgracefully exposed 
or disposed of. Friends and relatives are not allowed 
to suffer in silence, and impotently, at the disgraceful 
and indecent treatment of the dead bodies of their 
friends when their hearts are wounded with their 
grief and loss. It is also imprudent to lessen the 
solemnity of the services of burial, which are the 
means of deep impressions on the heart for good. 
This is the universal sentiment throughout Christian 
countries. Even when death occurs on the ocean, 
1 Kanavan's Case, 1 Maine 226 (1821). 



DISPOSITION OF DEAD BODIES. 



41 



and the body must be disposed of there, the con- 
signment thereof to the billows, so far as practicable, 
is respectful and solemn. 1 

In 1786, the grand duke of Tuscany, Leopold, un- 
dertook to abolish the burial system in his territory. 
All bodies of the dead, without exception, persons 
of all ranks, conditions, and ages, of both sexes, and 
with whatever disease they might have died, were 
brought out from their houses and tumbled into a 
cart in the night, and conveyed to a pit beyond the 
city walls, there to putrefy in one loathsome and 
horrible mass of undistinguishable humanity. On 
sanitary grounds, some philosophers applauded the 
movement; but to all natural human feelings it was 
so abhorrent that the populace rose against it, and 
it was soon legally annulled. 2 

Burial. — The burial of dead bodies is placing them 
under or in earth. This was the earliest method of 
disposing of the dead that at all resembles an inten- 
tional disposition. But in the course of time crema- 
tion took its place, continuing until the coming of 
Christ. The belief of the Christians in the resur- 
rection of the body then caused a return to the burial 
system, which has since prevailed in a greater degree 
than any other method of disposal. 

The manner of burial must be consistent with 
decency and the preservation of the public health. 
Any method of burial is valid and proper, and will 
be permitted at common law, if no nuisance is occa- 
sioned thereby. 3 The remains may be placed in 

1 Kanavans Case, 1 Maine 226 (1821). 

2 Gilbert v. Buzzard et al, 2 Hag. Con. Rep. (Eng.) 333(1821). 
8 Bogert v. City of Indianapolis, 13 Ind. 134 (1859). 



42 



MORTUARY LAW. 



vaults, or in direct contact with the earth. Anciently 
there were two kinds of burial, — one above, the 
other below, the surface of the ground. The latter 
was the common method, and is so still; the former 
is obsolete. In burial by the former method the 
body was laid on the ground, and over it was erected 
a framework of logs or lumber, or masonry work, 
producing a tomb-like structure. Over and upon 
this was piled earth, sometimes to the height of a 
hundred feet, and having so large a base that some 
of them covered large areas; in one instance, as 
much as six acres of ground. These tumuli are 
found in America, Europe, and Africa, the pyra- 
mids of Egypt being but the higher type of such 
constructions. 

Most people have a desire to be buried in their 
home land. In the declining years of life, one's 
thought is toward the home of his youth. Later 
scenes and experiences do not impress him now. 
However it may be in its operation, this is univer- 
sally true. The law, in some sense and degree, rec- 
ognizes this, and provides for the transportation of 
bodies, sometimes for thousands of miles, for the 
purpose of burial at home. 

A dead body must be disposed of by burial or 
otherwise before putrefaction sets in. If that can 
be stayed by freezing or embalming, the time can be 
lengthened accordingly. 

It is a common belief in Eastern countries that 
the spirits of human beings ought to be allowed three 
days in which to leave their human tenements after 
notice has been served upon them by death; and 
although the people there are accustomed to bury 



DISPOSITION OF DEAD BODIES. 



43 



their dead soon after death takes place, they usually 
leave the tomb open until the third day has passed, 
or, if they have not left it open, they repair thither 
on the third day to open it again, so that the spirit 
may have free egress. Emanuel Swedenborg indorsed 
this belief. 

For three days resuscitation is deemed a possibil- 
ity ; but then decomposition is supposed to take 
place, as the spirit has departed. When Lazarus 
died at Bethany, his sisters had hope that he might 
be raised from the dead by our Lord, but on the 
fourth day after his death they did not believe it 
possible. On the third day after the burial of Jesus 
himself, the women came to anoint his body accord- 
ing to custom ; but he was risen ; and the prophecy 
that he should not see corruption was fulfilled, at 
least in the belief of the people of that time and 
place. 

Even in matter of fact New England it is deemed 
highly improper, except in cases of dire necessity, 
as when death has been caused by a very contagious 
and dangerous disease, to bury a body before the 
third day after death; while in some localities, as a 
writer asserts, a window, or an outside door, is still 
left open meantime for the egress of the spirit, if it 
should desire to depart earlier. This rule of burial 
on the third day after death is generally well fixed in 
the civilized world; though in later times, we pre- 
sume, there is a common feeling that to bury a corpse 
within a shorter space of time indicates an improper 
desire to be rid of the body too quickly. Of course 
this feeling is the result of those practices of our 
ancestors and ourselves which have educated us to 



44 



MORTUARY LAW. 



regard three days as the conventional length of time 
to retain such bodies in our midst, few persons to-day 
having a thought of the origin of the practice. 

Cremation. — Many people have a natural horror 
of having their bodies burned after death ; but, how- 
ever it may seem to them, others have a still greater 
dread of putrefaction, and of the " small cold worm 
that fretteth the enshrouded form." The only differ- 
ence between cremation and burial is that one is a 
quick, and the other a slow, method of accomplish- 
ing the same purpose, — that of reducing the body 
to ashes. Both are subjects upon which no healthy 
imagination would dwell; but one is inevitable, and 
while the individual might have a preference for one 
method over the other, he must remember that the 
public as such have an interest in the matter. There 
are many reasons why cremation should be adopted 
in populous places. 

Cremation was very early practised, and before 
the Christian era it prevailed among the Romans, 
some of their fine tombs which were made at that 
time being lined with small recesses for the recep- 
tion of urns containing the ashes of the dead. In 
Tibet, the gyalpos are said to have carefully col- 
lected the ashes of their incinerated dead, and made 
them into an image of the deceased. 

The teachings of the Christian church brought 
about a great change in the manner of disposal of 
human remains. The truths of the resurrection led 
to a conviction, shallow though it was, that the 
temple of the Holy Ghost ought not to be disinte- 
grated, but placed in the ground entire, and there 
await the summons to arise at the last great day. It 



DISPOSITION OF DEAD BODIES. 



45 



has been facetiously remarked of the early Chris- 
tians, that, though they were strongly opposed to the 
burning of their dead bodies, the same reasons were 
not urged in opposition to the desire of their enemies 
to burn them while they were living. 

As the matter was wholly ecclesiastical, and the 
change in the manner of disposition of dead bodies 
was so complete, the law has never formally forbidden 
cremation until recently, when one or two States 
passed statutes to that effect, while others have 
enacted laws establishing crematories, with all the 
powers to act in the incineration of human remains 
that are necessary. 

At common law, to burn a dead body, instead of 
burying it, is not a crime, unless it is so done as to 
make the operation a public nuisance. The law 
does not make criminal every act or practice which 
jars the religious sentiments of the majority of the 
people. 1 

In the case of Williams v. Williams,' 1 a testator 
directed his friend to burn his body, and his execu- 
tors to pay the expense of the same. The executors 
refused to have this done, and buried the body. The 
friend fraudulently obtained authority to disinter 
the body on the pretence of interring it elsewhere. 
She then burned it, and sued the executors for the 
amount of the expense. The court held that her 
action was a fraud on the license board simply, and 
illegal, and on that ground would not allow her to 
recover. In the case of Queen v. Price, 3 a man 

1 Queen v. Price, L. R. 12 Q. B. Div. (Eng.) 247 (1884). 

2 Williams v. Williams, L. R. 20 Ch. Div. (Eng.) 659 (1882). 

3 Queen v. Price, L. R. 12 Q. B. Div. (Eng.) 247 (1884). 



46 



MORTUARY LAW. 



placed the dead body of his five months' old child 
in a ten-gallon cask of petroleum, carried it out 
into a field, and set it on fire. A crowd of people 
collected, and by application of earth and other 
means extinguished the flames. The father was 
arrested and indicted for attempted cremation of 
his child. The court said that burning was "not 
highly mischievous or grossly scandalous " ; and the 
defendant was duly acquitted. 

Dissection. — Dissection is a means of disposal of 
dead bodies that arose originally out of necessity, 
and has since been constantly enlarged by arbi- 
trary law. It has no origin or lodgment in the 
desires of subjects or friends, few people probably 
being willing that their remains should be so used. 

Physicians and surgeons early found it necessary 
to the proper understanding of the human frame and 
system to dissect bodies. Anatomy was practised 
in England as early as the beginning of the seven- 
teenth century ; and the demand for bodies for this 
purpose became so great, that many people became 
professional body-snatchers, as they were called, 
and in some instances murders were brought about 
for the coveted cash value of the corpse of the dead. 

Anatomy is lawful, however much it may shock 
the sensibilities of many persons, and takes away 
the right of disposition of the body which every 
person is assumed to have. 1 

It is an offence at common law to dig up bodies 
for dissection, because it is the right of the deceased 
to have his remains disposed of in a proper and 
decent manner. The law throws around the dead 

1 Queen v. Price, L. R. 12 Q. B. Div. (Eng.) 247 (1884). 



DISPOSITION OF DEAD BODIES. 



47 



this security, and never allows it to be disturbed ex- 
cept from necessity. Even then the blow falls where 
it will do the least harm. This security is enhanced 
by the feelings of the public in regard to such unnat- 
ural treatment of the human body, as well as by the 
sense of outrage on the part of the relatives and 
friends of the deceased. 1 

Embalming. — Embalming was practised by several 
peoples, and for a long period of time ; but it cannot 
be presumed that any one now has a wish for such a 
treatment of his body, although it does seem to be 
a refinement upon ordinary burial. Its antiquity is 
very great, antedating the Hebrew captivity in Egypt 
and the dynasties of the Pharaohs. The purpose of 
embalming, which gave it preference over any other 
disposition of bodies, was to save the remains from 
putrefaction and from insects. Like the Christian 
peoples, the Egyptians believed in the corporeal 
resurrection of the "justified" dead; and this 
method of preservation was deemed essential, as the 
body must not experience corruption. Embalming 
in the mummy form was universal and compulsory ; 
and the huge pyramid, the secret pit, and the subter- 
ranean labyrinth were made for the resting place of 
those dried forms. This method of disposal of the 
bodies of the dead continued to be practised until 
about the year 700. So far as the books show, the 
common law never recognized nor opposed this 
method of disposition. 

i Kanavaris Case, 1 Maine 226 (1821). 



48 



MORTUARY LAW. 



CHAPTER VIII. 

UNDERTAKERS. 

In the early days those persons upon whom the 
duty of burial was placed had to perform the burial 
services themselves, or to hire some person to do the 
work who was as little experienced in and as ignorant 
of the service as they were. Infractions of proper 
manner and legal requirements of those portions of 
the service that related to the public decency and 
health often occurred, and as often were overlooked 
on account of the ignorance of the one having it in 
charge, and the danger of the complainant himself 
being found guilty of the same kind of misdoing. 
In the course of time men began to make the conduct 
of the funeral and burial services of the deceased a 
vocation. They undertook the entire charge of the 
remains and services, and were called undertakers, 
by which name they are generally known to-day. 
The advantages of having the advice and service of 
those who make the performance of this duty a study 
and practice are readily appreciated. They under- 
stand the mode of procedure and the manner of 
burial, and have all the means of transportation for 
bodies and the necessary implements at hand, and 
skill to use them. 



UNDERTAKERS. 



49 



Although a human dead body is not property in 
the strict sense, yet an undertaker who has such 
bodies in his possession occupies the position of a 
bailee in regard to them, and he will be responsible 
in damages for allowing them to be mutilated or to 
go out of his possession without legal authority or 
the consent of those parties having the right to dis- 
pose of the same. The leading case on this question 
is that of Renihan et al. v. Wright et al., 1 in which 
an undertaker was engaged by the plaintiffs, who 
were the parents of a deceased girl, to keep her 
remains until they were prepared to inter them. 
The undertaker allowed the body to be forwarded to 
another State for burial, without the consent or 
knowledge of the parents, and refused to inform them 
as to where the remains were, further than to say, 
"Your child is in Ohio." The court said: "When 
the appellants contracted with the appellees to safely 
keep the body of their daughter until such time as 
they should desire to inter the same, they did so 
with a knowledge of the fact that a failure on their 
part to comply with the terms of such contract would 
result in injury to the feelings of the appellees, and 
they must, therefore, be held to have contracted with 
reference to damages of that character, in the event 
of a breach of the contract on their part." In this 
case, several hundred dollars were awarded as 
damages. 

A city regulation that undertakers must be licensed, 
and that no person other than superintendents of 
cemeteries or duly licensed undertakers "shall dig 
any grave, bury any dead body, or open any tomb in 

1 Renihan et al. v. WrUjlit et al, 125 Ind. 536 (1890). 
4 



50 



MORTUARY LAW. 



any cemetery, graveyard, or other place in the city 
other than the cemetery, or move from any house or 
place within the city to any place of burial whatso- 
ever the body of any deceased person," is reasonable 
and valid. 1 Suitable and trustworthy persons would 
be thus intrusted with the moving of dead bodies 
through the public streets of the city with decency 
and safety; and it would subserve the interest of 
the city in its public health. 



1 Commonwealth v. Goodrich, 13 Allen (Mass.) 546 (1806). 



FUNERALS. 



51 



CHAPTER IX. 

FUNERALS. 

Those that have the duty and right of burial have 
a license to enter upon the premises of others where 
bodies lie, for the purpose of assuming custody thereof 
and removing them for the funeral and burial. But 
if this license is not utilized, it does not extend to a 
right to enter upon such premises for the purpose of 
attending the funeral services which others have 
arranged. A suit for damages, even by a husband 
who has been refused the privilege of viewing his 
wife's body, will not lie under such circumstances. 1 

What is proper and legal in the way of funeral 
ceremonies varies with the religion and enlighten- 
ment of the people by whom they are held. A man's 
death is the most stupendous event of his life, 
morally as well as materially; and it is but natural 
that much attention should be paid to it. Lifelong 
companionships are severed, and objects of love, 
confidence, sympathy, and support are snatched 
away. All nations would pay great regard to it, 
even were the religious element eliminated. What- 
ever is done to the remains of a deceased human 
being that is consistent with proper regard and 
religious belief has always been allowed and pro- 

1 Neilsoti v. Brown et al, 13 R. I. 651 (1882). 



52 



MORTUARY LAW. 



tected by the law of the time when, the place in 
which, and the people among whom it is done. 

In all ages and parts of the world funeral cere- 
monies express four purposes : 1. Affection for the 
dead and grief for the loss ; 2. Present interest in and 
solicitude for their welfare ; 3. Fear of them in their 
present state ; and, 4. Affectionate remembrance 
of them. Primitive peoples show their sorrow in 
their bereavement by exaggerations of the common 
expressions of grief, such as groaning and wailing, 
fasting, neglecting the care of the hair, wearing 
rags or sackcloth, sitting in ashes, daubing them- 
selves with mud or pigments, wringing the hands, 
tearing the hair, shaving the head, beating the 
breast, etc. All believe in a future state, and most 
of the ceremonies are based on that belief. 

Funerals are held either at the residence of the 
deceased, or in a church, temple, or other sacred 
place, or at the tomb. 

The services immediately precede the burial or 
other final disposition of the body. 

The undertaker or other person having charge of 
the funeral makes all the arrangements for the ser- 
vices, with the approval of the immediate relatives, 
if convenient. 

The services usually consist of some religious 
exercises, a sermon, a prayer, and reading from the 
sacred books of the respective peoples. 

The remains are reverently carried to the place of 
their final disposition on a bier, or, in modern times, 
in a hearse. 

Burial is the most common method of disposition 
of dead bodies, by high and low, ignorant and cul- 



FUNERALS. 



53 



tured, — either beneath the surface of the ground, 
or under a huge pile of earth and rocks. Coffins and 
fixed burying places are found among many different 
races of people, educated and ignorant. Some peoples 
bury their dead lying at full length, others sitting, 
and most are particular to lay the body east and 
west. 

The funeral rites of the Christians have always 
been marked by a high regard for the body, because 
of their belief in the resurrection. In early times 
the dead body was swathed in white, placed in a 
coffin, in which the remains were borne on a bier to 
the place of interment covered with a pall. It was 
laid in the grave with the face upward, and ever- 
green leaves were strewn on the coffin. The funeral 
and burial occurred in the day-time, in a decorous 
and solemn manner. Friends were invited to take 
a parting look. There was also a simple service at 
the grave. For a while in the fourth century, how- 
ever, the sacrament of the Lord's Supper was cele- 
brated at the grave. 

Natural feelings prompt the use of coffins to keep 
the remains from present and immediate contact 
with the earth ; and they have now been in common 
use for a century and a half. They are usually 
buried with the body, but not always. In the Middle 
Ages bodies were interred generally without them. 
In Ireland, until 1818, certain families in Wexford 
County were in the habit of burying their dead 
uncoffined. The bodies were carried to the burying 
place in open coffins with their faces uncovered. 
The graves were six or more feet deep, and lined 
with bright green turf from the banks of the river 



54 



MORTUARY LAW. 



Slaney. In these green chambers were strewn moss, 
dry grass, and flowers, and a pillow of the same sup- 
ported the head of the corpse when it was laid in its 
last earthly bed. Early in the seventeenth century 
in England there was a scale of prices for interments, 
a certain sum for burial with coffin, and a much less 
sum for burial without coffin. The poor were usually 
placed in the old oak parish coffin for the purposes 
of the funeral, or rather taken to the grave in it, and 
interred in their shroud only. The coffin was then 
returned to the niche in the wall where it was kept, 
to remain until it should be again needed. Some 
of these coffins had been used for two hundred 
years. They were in use in Durham as early as 
1615, and a hundred years later. Burial in the 
parish coffin was one of the hard things of poverty. 
Among the many projects of George III. to raise 
money for the support of his army and navy was that 
of taxing coffins. 

Coffins have been made of all sorts of materials, 
lead, iron, gold, glass, stone, marble, and clay baked 
into tiles. The most common and perhaps the earliest 
used material is wood. The right of burial of dead 
bodies in coffins made of imperishable materials has 
been contested in the courts. The privilege of bury- 
ing in so called imperishable materials is granted, 
but the authorities are allowed to charge a larger fee 
therefor, because the occupancy of the ground will 
necessarily be so much longer. This reason may 
seem insufficient when the modern cemetery system 
is fully considered. The right of burial in a church- 
yard, even now, is not a right to bury a large chest 
or trunk, either of wood or metal. In the case of 



FUNERALS. 



55 



Gilbert v. Buzzard et al., 1 the objection made to an 
iron coffin was not to its size, as it was smaller on the 
outside than a wooden coffin, but because it was of a 
material that would not readily decay. In this case 
it was a "patent iron coffin," probably locked, made 
to prevent body-snatching, which was at that time 
and place uncomfortably common. The use of such 
coffins is certainly lawful. 

Palls are not in common use to-day. In early 
times in New England the town or parish owned the 
pall, or the later " burying cloth," which was used 
by the public. And with the pall pall-bearers have 
also gone out of fashion, though "bearers," some- 
times erroneously called "pall-bearers," are still 
carriers of the remains. 

A "wake," kept by Roman Catholics over the 
remains of deceased friends, has been recently recog- 
nized by the law as a proper service. 2 

The funeral services are of a religious character, 
being adapted to make a deep impression, and to 
produce the best effects. 3 They are greatly varied 
in the exercises, and include the public funeral, held 
over the remains of a prominent person in a public 
place, which civic bodies and societies and the public 
generally attend ; the military funeral, conducted in 
the style and manner prescribed for the burial of the 
military dead, with the volley fired over the grave 
and the march of armed soldiers, the drum-beat, and 
the shrill notes of the fife ; and the more private and 

1 Gilbert v. Buzzard et al., 2 Hag. Con. Rep. (Eng.) 333 
(1821). 

2 McCue, adm'r, v. Garvey, 14 Hun (N. Y.) 562 (1878). 
8 Kanavan's Case, 1 Maine 226 (1821). 



50 



MORTUARY LAW. 



smaller funerals. Private funerals are also varied 
in the length and variety of the exercises, and in the 
decorations. They are generally held in the resi- 
dence of the deceased, and thus are in the immediate 
control and charge of the family. Sometimes they 
are quite ostentatious, the exercises long and varied, 
and the decorations profuse and costly. Others are 
extremely simple, flowers are absent, and a short and 
simple prayer suffices for the religious ceremony. 
This is not usually owing to poverty, but to the 
rugged simplicity of the family in their religious 
faith, believing all ostentation to be sin. It is of 
such a funeral as this that Whittier wrote "The 
Friend's Burial " : — 

" True as in life, no poor disguise 
Of death with her is seen, 
And on her simple casket lies 
No wreath of bloom and green. 

M O, not for her the florist's art, 
The mocking weeds of woe I 
Dear memories in each mourner's heart 
Like heaven's white lilies blow. 



" Here organ-swell and church-bell toll 
Methinks but discord were, — 
The prayerful silence of the soul 
Is best befitting her. 



' From her loved place of prayer I see 
The plain-robed mourners pass, 
With slow feet treading reverently 
The graveyard's springing grass." 

On the occasion of a burial at sea the people on 
board the vessel gather round the remains, and a 



FUNERALS. 



57 



prayer is spoken, the body being then committed to 
the deep, wrapped in some winding-sheet. 

In the early New England days refreshments were 
served in great abundance at public funerals. These 
consisted principally of drink. At the funeral of 
the Rev. Thomas Cobbett, of Ipswich, Mass., who 
died in 1685, the services being under the auspices 
of the town, a barrel of wine and a considerable quan- 
tity of cider was served. The use of liquors on 
such occasions has now become unfashionable, but 
refreshments, served in the form of an ordinary 
meal, still follow the burial exercises. In this only 
the mourners participate. 

The remains must be borne to the grave covered, 
the respect due to the memory of the deceased and 
the feelings and health of the living having proper 
consideration. 1 

In most countries the relatives of the deceased 
indicate their bereavement by some change in their 
apparel. In America and England this is true in 
regard to the feminine sex, though some men indi- 
cate it by wearing crape on their hats. The women 
wear black clothing, and the widow of the deceased 
properly wears for a time a black bonnet with a long 
and heavy black crape veil. Mourning in apparel is 
generally confined to persons of adult age. 

In ancient times it was the practice of the family 
to give finger rings to the mourners. They were 
called "mourning rings." The practice became 
unpopular, and it has not prevailed to any extent 
for a century. 



i Queen v. Stewart et al, 12 Ad. & El. (Eng.) 773 (1840). 



08 



MORTUARY LAW. 



Another practice was that of presenting gloves to 
the mourners and pall-bearers of both sexes. At 
the funeral of Rev. Thomas Cobbett, mentioned 
above, there were distributed many dozen pairs. 
This was a custom quite commonly prevailing until 
the beginning of this century. Just prior to the year 
1800, the gloves were usually made of white leather; 
subsequently the color was black. Still later, it was 
the custom of some families to present the officiating 
clergyman with a pair of black silk gloves. 



FUNERAL EXPENSES. 



59 



CHAPTER X. 

FUNERAL EXPENSES. 

Funeral expenses 1 begin as soon as a person dies, 
with the laying out of the body, and end with its 
final disposition. They are necessary expenses, both 
at common law and under all statutes, and have 
priority over all other claims, 2 being a charge upon 
the estate of the deceased, and not a debt merely. 3 

Gratuitous Services. — There are claims sometimes 
made against estates which are either not directly 

1 The term " executorship expenses," used in a will, includes 
the testator's funeral expenses. Sharp v. Lush, L. R. 10 Ch. 
Div. (Eng.) 468 (1879). 

2 Tugwell v. Heyman et al, ex'rs, 3 Campb. (Eng.) 298 (1812) ; 
Sullivan v. Horner, adm'r, 41 N. J. Eq. 299 (1886) ; Rappdyea v. 
Russell, 1 Daly (N. Y.) 214 (1862); Ferrin v. Myrick, adm'r, 53 
Barb. (N. Y.) 76 (1869); Patterson, ex'x, v. Patterson, 59 N. Y. 
574 (1875) ; McCue, adm'r, v. Garvey, 14 Hun (N. Y.) 562 
(1878) ; Gregory v. Hooker's adm'r, 1 Hawks (N. C.) 394 (1821); 
Parker, adm'r, v. Lewis, adm'r, 2 Dev. (N. C.) 21 (1828); Ward 
Sr Co. v. Jones, adm'r, Busbee, Law (N. C.) 127 (1852) ; Salvo 
Wade v. Schmidt, 2 Spears (S. C.) 512 (1844). 

3 Rappelyea v. Russell, 1 Daly (N. Y.) 214 (1862); Ferrin v. 
Myrick, adm'r, 53 Barb. (N. Y.) 57 (1869); Patterson, ex'x,v. 
Patterson, 59 N. Y. 574 (1875) ; McCue, adm'r, v. Garvey, 14 Hun 
(N\ Y.) 562 (1878) ; Gregory v. Hooker's adm'r, 1 Hawks (N. C.) 
394 (1821) ; Parker, adm'r, v. Leiois, adm'r, 2 Dev. (N. C.) 21 
(1828) ; Ward Sf Co. v. Jones, adm'r, Busbee, Law (N. C.) 127 
(1852); Salvo Wade v. Schmidt, 2 Spears (S. C.) 512 (1844). 



GO 



MORTUARY LAW. 



connected with the funeral and burial of the deceased, 
or are furnished by those who should render them 
gratuitously under the circumstances. A case of 
this kind was that of Heivett v. Bronson. 1 A man 
boarded and made his home with his cousin and her 
husband for fifteen years. He was one day taken 
suddenly ill in the street, and died immediately. 
Not being recognized by those who saw him when he 
died, his remains were carried to an undertaker's 
rooms. The man with whom he had lived, missing 
him, began a search for him, and found his remains 
in the possession of the undertaker, the public 
authorities being about to bury them as those of an 
unknown person. He took charge of the body, and 
had the funeral at his house. The executor of the 
will of the deceased paid all the ordinary expenses 
of the funeral, but refused to pay for the services of 
the host in searching for his friend, for writing 
advertisements announcing the funeral and sending 
them to the newspapers, for procuring a clergyman 
to perform the funeral exercises, for the use of 
his house for the funeral and for the deposit of the 
coffin for a few hours, and for other similar items. 
Suit was brought to recover for them, but the court 
held that all this was gratuitous, no money having 
been spent, and would not allow the claim. A 
similar case was that of Lund v. Lund, 2 in New 
Hampshire, in which a man, who was afterward 
appointed administrator of the estate, asked the 
court to allow him in his account for car and coach 
fare for himself and his wife, and of his sister and 

1 Hewett v. Bronson, 5 Daly (N. Y.) 1 (1873). 

2 Lund v. Lund, 41 N. H. 355 (1860). 



FUNERAL EXPENSES. 



61 



her husband, to attend the funeral of the deceased, 
who was his brother, and for his time and services 
in attending the funeral, Touching the propriety of 
making claim for such services, which true affection 
would always prompt without any expectation or 
desire of pecuniary remuneration, the court said: 
" Elconomy would suggest that, if mourners must be 
hired at a funeral, it would be better to procure them 
as near by as possible, and thus save paying their 
fare ; and it would seem to be much more in accord- 
ance with the common notions of propriety, if men 
must be procured for pay to perform such services, 
that indifferent strangers be selected rather than 
brothers and sisters. Tears that flow to order, and 
are shed for a price, should find no place when men 
stand around a death-bed or the coffin of parents or 
children, brothers or sisters." 

WHAT IS INCLUDED. 

Funeral expenses include the expense of laying 
out the body, the undertaking, services at the 
funeral, the cost of the lot, and all expenses of the 
burial and of marking the grave. 

The directions of a testator in his will as to his 
funeral should be carried out when they are reason 
able and proper, and not against public policy, if the 
estate is solvent. In all other cases it is presumed 
to be in consonance with his wishes that he be 
interred in the manner which the custom of his time 
and place has established. 1 It must be confined to 
the usage of the neighborhood and period in which 

1 Rappelyea v. Russell, 1 Daly (N. Y.) 214 (1862); Hewett v. 
Bronson, 5 Daly (N. Y.) 1 (1873;. 



62 



MORTUARY LAW. 



the death occurs, as customs are ever changing, and 
what may be deemed absolutely essential at one time 
would be thought absurd at another. The law pre- 
sumes this, and raises an implied request on the 
part of the deceased that this be done. 1 

Laying out the Body. — This is the first of the 
funeral expenses, and is always necessary. 

Notice of Death. — The expense of communicating 
intelligence of the death of the deceased to his family 
is a part of the funeral expenses, and should be 
allowed as such. In the case of Hasler v. Hasler, 2, 
the deceased committed suicide at a hotel in New 
York, and a special messenger was sent to Phila- 
delphia to inform the relatives of the deceased, who 
resided there, of the death. This was shown to be 
the most prompt means of communication, and was 
therefore proper and necessary, as the property of 
the deceased must be secured, adequate preparations 
made for the transportation and burial of the body, 
and expenses consequent upon delay avoided. 

Transportation of Body. — When a person dies away 
from home, the expense of the proper transportation 
of the body thither is a legitimate part of the funeral 
expenses. 3 It is reasonable to presume that a person 
wishes to lie among his kindred after his decease, 
and a request on his part to that end is therefore 
implied. The only questions that can arise on this 
rule are, first, whether an insolvent estate should be 

1 Lentz v. Pilert, 60 Md. 296 (1883). 

2 Haslerv. Hosier, 1 Bradford (N. Y.) 248 (1850). In this case 
an item of twelve dollars paid for such expenses was allowed. 

3 Sullivan v. Horner, adm'r, 41 N. J. Eq. 299 (1886); Hasler 
v. Hasler, 1 Bradford (N. Y.) 248 (1850). 



FUNERAL EXPENSES. 



63 



made to pay for the transportation of the body in 
such a case ; second, as to the means of transporta- 
tion between the place of death and the place of 
burial ; and, third, the distance the two places are 
apart. In the case of Sullivan v. Horner, adm'r, 1 
the court allowed such a claim, though the remains 
were transported from Texas to New Jersey. 

The items of such expenses are several in number. 
One is the cost of the permit of removal and trans- 
portation; and if, in order to obtain such permit, it 
is necessary to secure a certified copy of the verdict 
of the coroner's jury in a case where the deceased 
committed suicide, the expense of such copy should 
be added. 2 Another item is the expense of a person 
to accompany the remains for the purpose of super- 
intending such transportation. 3 

Shroud. — The shroud or clothing in which the 
body is interred is necessary, and should be paid for 
out of the estate. 4 

Coffin. — A coffin is also a necessary article for the 
interment of the dead, and must be paid for by the 
estate of the deceased. 

Wake. — In the case of Me Cue, admW, v. G-arvey, 5 
tried in the New York courts in 1878, a claim of 
forty-seven dollars for the expenses of a "wake" 
was allowed. 

1 Sullivan v. Horner, adm'r, 41 N. J. Eq. 299 (1886). 

2 Hosier v. Hosier, 1 Bradford (N. Y.) 248 (1850). 

8 Sullivan v. Horner, adm'r, 41 N. J. Eq. 299 (1886) ; Hosier 
v. Hosier, 1 Bradford (N. Y.) 248 (1850). In the latter case an 
item of ten dollars paid for such expenses was allowed. 

4 France's Estate, 75 Pa. St. 220 (1874). In this case a claim 
of fourteen dollars paid for grave clothes was allowed. 

6 McCue, adm'r, v. Oarvey, 14 Hun (N. Y.) 562 (1878). 



64 



MORTUARY LAW. 



Funeral Services. — The expense of the services at 
the ordinary funeral is a legitimate part of the funeral 
expenses. Such is the fee of the officiating clergy- 
man; 1 and probably also the expense of procuring 
music. The charge of the sexton for tolling the bell 
possibly may be allowed. 

The expense of public funerals is rarely paid for 
by the estate of the deceased. They are usually 
under the auspices of some public body, and a large 
part of the expense is paid by them. The law will 
not presume, probably, that it is a man's desire to 
have a public funeral. 

Refreshments. — Charges for feasts and entertain - 
ment at funerals should not be allowed. 

Mourning. — The estate is not to be charged with 
the expense attendant upon procuring suitable arti- 
cles of mourning for the immediate family of the 
deceased. 2 The fact that an executor gives the order 
for it makes no difference with the rule. 3 

The surrogate court of New York, in the settle- 
ment of the Estate of Alfred Allen,* took a different 
view of the law. The court said, that, as it was the 
universal practice for the family of the deceased to 
wear mourning, and as a change in the wearing ap- 
parel was thus rendered necessary, it was a part of 
the preparation for the funeral, and a mark of proper 
respect for the dead, and the estate should pay for 

1 McCue, adm'r, v. Garvey, 14 Hun (N. Y.) 562 (1878). 

2 Johnson v. Baker, 2 C. & P. (Eng.) 207 (1825) ; Willis' 
arlm'r v. Heirs of Willis, 9 Ala. 330 (1840); Griswold et al v. 
Chandler, 5 N. H. 492 (1831) ; contra, Campfield, exW, v. Ely et 
al, 1 Green (N. J.) 150 (1832). 

3 Johnson v. Baker, 2 C. & P. (Eng.) 207 (1825). 

* Estate of Alfred Allen, 3 Dem. (1ST. Y.) 524 (1884). 



FUNEBAL EXPENSES. 



65 



it. The court limited the charge for mourning at 
the expense of the estate to a proper supply for the 
family, that is, to such members of it as he was 
obliged to support in his lifetime. In this estate 
there were no descendants, and the widow, who had 
expended for herself fifty-six dollars for mourning, 
consisting of bonnet, dresses, gloves, veil, cloak, etc., 
asked to be allowed for it out of the estate, which 
amounted to several thousand dollars over and above 
the debts due from it. The claim was allowed. In 
this case the court was apparently influenced by the 
situation of the parties and the condition of the 

estate. 

In the case of In re Wachter's Estate, 1 in the surro- 
gate's court in New York, the court decided that 
reasonable expenses incurred by the widow and 
minor daughter of the deceased in the purchase of 
mourning attire to wear at the funeral are allowable 
out of the estate as legitimate funeral expenses. 
Surrogate Davie said in this decision that not to pro- 
vide "for the usual and conventional ceremonies in 
mourning of the dead would seem not only parsi- 
monious, but utterly repugnant to one's conception 
of justice and propriety." 

The true rule is, however, that the estate of a 
deceased person is not liable for the necessary sup- 
port, after his decease, of those whom he was bound 
to support in his lifetime. Mourning is clothing, not 
procured simply to be worn at the funeral, but for 
general use; and although it is occasioned by the 
funeral and worn in response to a conventional decree, 
it partakes more of the character of ordinary cloth- 

i In re Wachter's Estate, 16 Misc. Rep (N. Y.) 137 (1896). 
5 



66 



MORTUARY LAW. 



ing, the better opinion being that it is little more 
than that, and should not be allowed as a part of the 
funeral expenses, unless the estate is large and the 
circunistanees peculiar, as in the matter of the Estate 
of Alfred Allen. 

The position of the Pennsylvania court on this 
question is a little peculiar. They will not allow a 
claim for mourning unless all the next of kin share 
in it; 1 but will allow it if the widow and children 
of the deceased receive it alike, though the estate is 
insolvent. 2 

Mourning Rings. — The estate of the deceased could 
not ordinarily be charged with the expense of pro- 
curing finger rings for distribution among the mourn- 
ers at the funeral, which was a custom in the olden 
time. In the English case of Paiee v. Archbishop 
of Canterbury,* the court allowed a credit in an 
executor's account of ninety-three pounds, twelve 
shillings, and sixpence, paid for mourning rings, 
which were distributed among the relatives and 
friends of the deceased. The reason of this decision 
was. the language of the will of the deceased. It 
contained a clause, saying, "and anything not speci 
fied I commit to the discretion of my executors." 
The court held that, as the practice of the times 
recognized the use of mourning rings as proper, 
it was a matter within such a discretion of the 
executors. 

Gloves. — Probably an estate was not liable for the 

1 Flintham's Appeal, 11 S. & R. (Pa.) 16 (1824). 

2 Estate of Arlna Wood, 1 Ashmead (Pa.) 314 (182-). 

3 Pake v. Archbishop of Canterbury, 14 Ves. (Eng.) 364 
(1807). 



FUNERAL EXPENSES. 



07 



price of gloves bestowed upon mourners at funerals 
when such a practice prevailed. Such a charge 
would certainly not be tenable now. 

Portrait. — A claim for the cost of painting a 
likeness of the deceased, painted after his death by 
order of the administratrix, cannot be allowed against 
the estate. In the Appeal of Ann M' Grlitisey, adm'z, 1 
the widow of the deceased, being his administratrix, 
and having under the law one half of the estate, 
desired to have a portrait of the deceased as a 
memorial of him for her own use, and had one 
painted. She charged the estate with the amount 
paid therefor, but the court decided that the portrait 
had no connection whatever with the funeral or burial 
of the deceased, that it was for her own personal 
benefit only, and that she, and not the estate, must 
pay for it. 

Bearers. — The expense of bearers can probably be 
proved against an estate. 

Pall and Pall-bearers. — In the time of palls and 
pal I -bearers, the expense thereof was probably a 
legitimate charge against the estate. 

Carriages. — The cost of conveying the family and 
friends to the place of interment at the time of the 
funeral is a part of the funeral expenses. 2 

Attendance of Societies at Funerals. — A gratuity 
given to the members of a society, who paraded at 
the funeral of the deceased, is not chargeable to the 
estate. In the Accounting of M. F. Reynolds, exW* 

1 Appeal of Ann M'Glinsey, adm'x, 14 S. & R. (Pa.) 64 
(1826). 

* Donald v. McWhorter, 44 Miss. 124 (1870). 

a Accounting n/M. F. Reynolds, exW, 124 N. Y. 388 (1891). 



68 



MORTUARY LAW. 



the evidence showed that he had paid to a certain 
commandeiy, of which the testator was a member, 
two hundred and fifty dollars as a gratuity for parad- 
ing at his funeral. It did not appear that pay had 
been demanded by the society as a condition of its 
participation in the funeral. The amount was dis- 
allowed as a part of the funeral expenses. 

Burial Lot. — The purchase of a burial lot in which 
to inter the remains of the deceased is always allow- 
able against an estate as a part of the funeral 
expenses, if he had not already procured one in his 
lifetime. 1 If he owned a lot, but it is or becomes 
undesirable at the time of his death, and it is a 
proper case for the purchase of a new lot, the court 
will allow the price of the new one as a part of the 
funeral expenses. Even where a cemetery, in which 
the deceased was first buried, was undesirable, and 
it was a proper case for the removal of the remains, 
the court will allow the cost of a new lot against the 
estate. 2 

In the case of Birkholm v. Wardell et al., 3 a 
charge of fifteen dollars was allowed for a burial 
lot. In the Estate of Alfred Allen* forty dollars 
was paid and allowed. In this case the estate 
amounted to several thousand dollars over and 
above its indebtedness. In the suit of Valentine v. 
Valentine^ as against the decedent's next of kin 

1 Birkholm v. Wardell et at., 42 N. J. Eq. 337 (1886) ; Valen- 
tine v. Valentine, 4 Redf. (N. Y.) 265 (1880). 

2 Estate of Alfred Allen, 3 Dem. (N. Y.) 524 (1884). 
» Birkholm v. Wardell et al, 42 N. J. Eq. 337 (1886). 
4 Estate of Alfred Allen, 3 Dem. (N. Y.) 524 (1884). 
6 Valentine v. Valentine, 4 Redf. (N. Y.) 265 (1880). 



FUNERAL EXPENSES. 



69 



three hundred and fifty-one dollars was allowed for 
a burial lot, the estate amounting to more than thir- 
teen thousand dollars, and most of the kin having 
assented thereto. But the amount was probably 
unreasonable, and not to be allowed as against 
creditors. 

The expense of a burial lot is provable against 
the estate of the deceased, even when the widow who 
is the administratrix takes the deed of the same in 
her personal capacity, if she acted in good faith. 1 
In such a case, where the funds with which the lot 
is purchased come from the estate, she should make 
a declaration of trust, in which she declares that 
she holds the lot for the children of the deceased in 
fee, subject to her right of burial therein, and her 
dower right, and that the children are entitled to all 
the rights of ownership and burial as if they were 
the grantees. The widow may be compelled to make 
such a declaration by a bill in equity ; and in such a 
bill all the children need not join. 2 

The Grave. — Expenditures for digging and filling 
the grave are a part of the funeral expenses. 3 

Marking Place of Interment. — The term "funeral 
expenses " includes the cost of suitable headstones, 
gravestones, and monuments erected to mark the 
place where the deceased is interred, and also the 
expense of the inscription thereon necessary to 
identify the deceased. Such expenses, when reason- 
able in amount, are to be allowed by the court even 

1 Birkholm v. Wardell el al, 42 N. J. Eq. 337 (1886); Estate 
of Alfred Allen, 3 Dera. (N. Y.) 524 (1884). 

2 Stewart's Appeal, 81* Pa. St. 323 (1876). 

s Polhj Fairman's Appeal, 30 Conn. 205 (1861). 



70 



MORTUARY LAW. 



when the estate is insolvent. The representative of 
an estate is not bound to procure them; it can be 
settled without doing so. See Chapter XL, entitled 
Monuments, Gravestones, etc. 

Reinterment. — If the deceased is at first buried in 
a lot which was hurriedly obtained in the excitement 
of the occasion without the exercise of due discre- 
tion, and it proves to be undesirable, the expense of 
removal of the body, if it is permitted, is a charge 
upon the estate as a part of the funeral expenses. 
In the settlement of the Estate of Alfred Allen, 1 
which amounted to several thousand dollars more 
than its indebtedness, the widow of the deceased, 
who was his executrix, he leaving no descendants, 
in the confusion and hurry of the death and funeral, 
had the remains buried in a cemetery that was much 
neglected, the fences being down, and the ground 
growing up to briars and infested with woodchucks. 
Learning, also, that she could not get a good title to 
the lot in which the remains of the deceased had 
been interred, she had the body removed to a burial 
ground that was well kept, a place where she was 
willing to be buried herself, and the court allowed 
the expense of the removal in her account. 

AMOUNT ALLOWED. 

The amount allowed for funeral expenses by the 
court is dependent principally upon the size and 
condition of the estate of the deceased, the rank, 
degree, or position of the deceased being directory 
to a much smaller degree. 2 Something more than 

1 Estate of Alfred Allen, 3 Dem. (N. Y~.) 524 (1884). 

2 Jenkins v. Tucker, 1 H. Bl. 90 (1788) ; Tugwell v , Eeyman et 



FUNERAL EXPENSES. 



71 



the mere shroud, coffin, and grave is required, and 
the last wishes of the dying should be complied with, 
as to the style and character of the funeral, if the 
estate is solvent and extravagance is not involved. 
The law and courts are always more liberal in this 
respect against legatees and distributees than against 
creditors. 1 If the estate is insolvent and small, only 
the cheapest goods and service, and of those only 
the most necessary, will be allowed. 2 The feelings 
of the family and friends of the deceased, who would 
be lavish in the honors which their affection and 
respect desire to show to the departed, must not 
be exercised at the expense of creditors. It does 
not necessarily follow that the remains of a public 
officer or of a merchant, who have been important 
and advantageous members of society, should be 
placed in the rude painted coffin of a pauper. 3 The 
rale means that the service shall be free from extra- 
ordinary and too costly rites and goods. 4 The fact 
that the deceased had been a public officer does not 
make a public funeral necessary. 5 An executor or 
administrator is not at liberty generally to use his 

ai., ex'rs, 3 Campb. (Eng.) 298(1812) ; Brice v. Wilson, 3 N". & M. 
(Eng.) 512 (1834); Palmes et al. v. Stephens, R. M. Charlton 
(Ga.) 56 (1821); Dampier v. St. Paul Trust Co., 46 Minn. 526 
(1891); Donald v. McWhorter, 44 Miss. 124 (1870). 

1 Donald v. McWhorter, 44 Miss. 124 (1870). 

2 Edwards v. Edwards, adm'x, 2 Cr. & M. (Eng.) 612 (1834); 
Palmes et al. v. Stephens, R. M. Charlton (Ga ) 56 (1821). 

s Hancock v. Podmore, ex'x, 1 B. & Ad. (Eng.) 260 (1830) ; 
Sullivan v. Horner, adm'r, 41 N. J. Eq. 299 (1886) ; Estate of 
G. A. Erlacher, 3 Redf. (N. Y.) 8 (1S77). 

* Green v. Salmon, 3 N. & P. (Eng.) 388 (1838). 

e Estate of G. A. Erlacher, 3 Redf. (N. Y.) 8 (1877). 



72 



MORTUARY LAW. 



own discretion in this matter. If he pays an extrava- 
gant sum for the funeral expenses, and the court will 
allow but a portion of the amount, he is personally 
responsible for the difference. The court is the 
judge of what is reasonable under all the circum- 
stances, aided by a jury. 1 There is an exception to 
this rule, however, which furnishes latitude to the 
decision of an undertaker or personal representative. 
If the appearance of the financial condition of the 
deceased is such as to warrant the belief that he is 
not only solvent, but possessed of a considerable 
estate, and a funeral and burial corresponding to 
such appearances is secured or furnished in good 
faith, the court will allow the entire expense. 2 The 
condition of an estate cannot be determined immedi- 
ately after death, especially in the case of a business 
man having varied and extensive interests. 

Although the expenditures for the funeral and 
burial are too large, yet if the personal representa- 
tives contract for them with the knowledge and con- 
sent of the heirs and other parties then known to be 
adversely interested, the amount will be allowed. 
And this is so even against a creditor, if he does 
not make his claim known to the administratrix 
until several years after the ordinary statutory limit, 
and the administratrix and heirs believe that no 
such claim existed against the estate. The action 
of Miller v. Morton et al. s was such a case as this. 

1 As to coffins, etc., the general market price, at retail, is the 
criterion of value. Kittle v. Huntley, 67 Hun (N. Y.) 617 (1893). 

2 Stag v. Punter, 3 Atkins (Eng.) 119 (1744) ; Estate of Owen 
Rnoney, 3 Redf. (N. Y.) 15 (1877). 

3 Miller v. Morton et al, 89 Hun (N. Y.) 574 (1895). 



FUNERAL EXPENSES. 



7:] 



The expenditures objected to included a burial lot 
and a monument, the latter costing fourteen hundred 
dollars, and the value of the estate being thirty-five 
hundred and forty dollars. 

The English court holds that if an administrator, 
before taking out letters of administration, sanctions 
an expensive funeral which a relative has ordered, 
he will be responsible for the full amount of its cost, 
and can be sued therefor as administrator. 1 

WHO MAY CONTRACT THEREFOR ? 

Who may contract for the funeral and burial of 
a deceased person, and bind the estate therefor ? 
Proper burial is necessary, and it is certain that in 
every instance some one must take the responsibility 
of having it attended to; and it is not fair nor con- 
sistent with justice to make such contractor liable 
for the expenses that arise therefrom. But every 
person who takes upon himself such a responsibility 
cannot escape personal liability. One who intermed- 
dles officiously and incurs expense in the interment 
of a dead body, when under the circumstances there 
is no necessity for his action, cannot recover from 
the personal representatives of the deceased. 2 

The authority to contract in such cases, and at the 
same time not be personally responsible, arises not 
from any principle of agency, 3 but from the duty 
that rests upon certain individuals to see that the 

1 Lucyv. Walrond, adm'r, 3 Bing. N. C. (Eng.) 841 (1837). 

2 McCue, adm'r, v. Garvey, 14 Hun (1ST. Y.) 562 (1878) ; 
Gregory v. Hooker's adm'r, 1 Hawks (N. C.) 394 (1821). 

3 Cunningham v. Reardon, 98 Mass. 538 (1868). 



74 



MORTUARY LAW. 



burial takes place. 1 In this sense, personal repre- 
sentatives always have this authority, if practicable ; 
and the rule is so strong that the law raises a 
promise on the part of executors and administrators 
to pay the person who, acting within his duty, has 
arranged for and engaged the funeral, making such 
representatives the parties having the first right and 
duty of contracting for such expenditures, or to 
ratify and adopt if they please the contracts of any 
other person made for the same purpose, whether 
such third person has the duty of burial under the 
circumstances or not. 2 This promise of repayment 
which the law raises on the part of the personal 
representatives is of course dependent upon the 
existence of assets under his control belonging to 
the estate. 3 Otherwise no promise can be implied 
to him. If the widow or family of the deceased pays 
the funeral expenses without objection on the part of 
the executor, his assent will generally be presumed, 
and the estate be held liable therefor. 4 In the settle - 

1 Rappelyea v. Russell, 1 Daly (N. Y.) 214 (1862). 

2 Tugwell v. Heyman etal., ex'rs, 3 Campb. (Eng.) 298 (1812) ; 
Brice v. Wilson, 3 N. & M. (Eng.) 512 (1834) ; Rogers v. Price, 
3 Y. & J. (Eng.) 28 (1828) ; Ambrose v. Kerrison, 10 C. B. (Eng.) 
776 (1851) ; Sullivan v. Horner, adm'r, 41 N. J. Eq. 299 (1886): 
Patterson, ex'x, v. Patterson, 59 N. Y. 574 (1875) ; McCue, adm'r, 
v. Garvey, 14 Hun (N. Y.) 562 (1878) ; Estate of Susan B. 
Miller, 4 Redf. (N. Y.) 302 (1880) ; contra, Gregory v. Hooker's 
adm'r. 1 Hawks (N. C.) 394 (1821). 

3 Tugwell v. Heyman et al, ex'rs, 3 Campb. (Eng.) 298 (1812) ; 
Rogers v. Price, 3 Y. & J. (Eng.) 28 (1828) ; Sullivan v. Horner, 
adm'r, 41 N. J. Eq. 299 (1886) ; Patterson, ex'x, v. Patterson, 59 
N. Y. 574 (1875). 

4 France's Estate, 75 Pa. St. 220 (1874). 



FUNERAL EXPENSES. 



75 



ment of the Estate of John S. Hill, 1 the mother, who 
was also executrix of the will of the deceased, in the 
presence of the deceased's husband, ignoring him 
and any rights he had in the matter, gave directions 
for the funeral to the undertaker, instructing him to 
spare no expense in the funeral. The instructions 
were heeded to the letter, and the undertaker charged 
the expense to her personally. The bill not being 
paid in due time, he brought suit against her per- 
sonally, and recovered judgment. She paid it, and 
took an assignment of it to herself and her co-executor 
in their representative capacity. It was held that 
her officious interference in ignoring the rights and 
duties of the husband relieved both him and the 
deceased's estate from the obligation imposed upon 
him and it by law, and that she became personally 
and primarily liable for the expense. 

The husband has the right of contracting for the 
burial of his wife, and the wife for the burial of her 
husband. 2 

A parent has the right to order the funeral and 
burial of his child, and a child of its parent, if the 
deceased left no husband or wife who will or can 
exercise their privileges. 3 In the case of Jenkins v. 
Tucker,* a man went to another country, leaving his 
wife, who died during his absence, and her father, 
without the husband's knowledge, paid the expenses 
of the funeral. The court held that he could recover 
the amount he paid from the husband. 

1 Estate of John S. Hill, 4 Dem. (N. Y.) 69 (1886). 

2 Brire v. Wilson, 3 X. & M. (Eng.) 512 (1834). 

8 Jenkins v. Tucker, 1 H. Rl. 90 (1788) ; Newcombe v. Beloe 
et ah, L. R. 1 P. & D. (Eng.) 314 (1867). 

4 Jenkins v. Tucker, 1 H. Bl. (Eng.) 90 (1788). 



7o 



MORTUARY LAW. 



Brothers and sisters have this right to contract, 
subject of course to the exercise of such right by 
those of nearer relationship where such exercise is 
practicable. In the case of Rogers v. Price, 1 a 
resident of England died at the house of his brother 
in Wales. The brother contracted for the funeral, 
and the court held the executor responsible to him. 
In the case of Bradshaw v. Beard, 2 the defendant's 
wife voluntarily left him, and resided with her 
brother, about a mile distant, until her death, which 
occurred several years later. The brother buried her 
without any communication from the husband, from 
whom he was allowed to recover the expense of the 
funeral. The court said that the case would have 
had a different aspect if the brother had been guilty 
of fraud in keeping the knowledge of her death from 
the husband. 

The right of strangers to make such contracts 
depends upon the circumstances under which the 
death occurs. It is the duty of every person under 
whose roof a dead body lies, if no other person exer- 
cises such right, to see that it has decent burial. 3 In 
the case of Cunningham v. Reardon, 4 the defendant's 
wife — who was living apart from him for justifiable 
cause, he having refused to support her or to solicit 
her to return to him — died at the house where she 
boarded, and the proprietor of the house paid the 
expenses of her funeral. He sued the husband, and 

1 Rogers v. Price, 3 Y. & J. (Eng.) 28 (1828). 

2 Bradshaw v. Beard, 12 C. B., N. S. (Eng.) 344 (1862). 

8 Cunningham v. Reardon, 98 Mass. 538 (1868); McCue, 
adm'r, v. Garvey, 14 Hun (N. Y.) 562 (1878). 
4 Cunningham v. Reardon, 98 Mass. 538 (1S68_). 



FUNERAL EXPENSES. 



77 



recovered, though no notice of her decease had been 
given to him. The general rule may be stated to be, 
that, in the absence of any person whose right it is 
to bury the remains of a deceased person, or if any 
such person is present but neglects or refuses to 
exercise his right, a stranger may contract for the 
funeral, and bind the estate thereby. 1 A coroner 
has this right in relation to bodies of strangers 
found dead. 2 

One having authority to make such a contract 
becomes by doing so at least a technical creditor of 
the estate of the deceased. 3 

Notice of Indebtedness. — As a general rule, probably 
no notice to the party who is responsible to pay the 
expenses of the funeral and interment of a deceased 
person is necessary. Such responsibility is an 
incident attending the relationship of the parties. 4 
But where the articles furnished are only a small 
part of all required, or are furnished by several per- 
sons, the fact of the claim and the extent of it should 
be given to the personal representative, as the assets of 
the estate are held by him temporarily only; and 
he might also be subjected to several suits without 
being at all aware of liability. 5 In many cases the 
furnishing of many of the articles might be presumed 

1 Walker et al., com'rs, v. She/tall, 73 Ga. 807 (1884) ; Rap- 
pehjea v. Russell, 1 Daly (N. Y.) 214 (1862); Estate of John S. 
Hill, 4 Dem. (N. Y.) 69 (1886). 

2 Walker et al., com'rs, v. She/tall, 73 Ga. 807 (1884). 

3 Lentz v. Pilert, 60 Md. 296 (1883). 

4 Cunningham v. Reardon, 98 Mass. 538 (1868). 

6 Gregory v. Hooker's adm'r, 1 Hawks (N. C.) 394 (1821); 
Parker, adm'r, v. Lewis, adm'r, 2 Dev. (N. C.) 21 (1828); Ward 
Sf Co. v. Jones, adm'r, Busbee, Law (N. C.) 127 (1852). 



78 



MORTUARY LAW. 



to be the prompting of love or of feelings of human- 
ity, and even though the articles were known to be 
furnished, and the persons by whom they were 
furnished, still the personal representative ought not 
to be held to know that they were not furnished 
gratuitously, but were intended to be a charge 
against the estate of the deceased. 1 

WHO ARE PRIMARILY LIABLE ? 

By the civil law of ancient Rome, the charge of 
burial was, first, upon the person to whom it was 
delegated by the deceased ; second, upon the person 
to whom the property of the deceased was given by 
will, and, if the property was not so given, then upon 
the heirs or next of kin in order of relationship. 2 

Under the common law, the general rule is, that 
he who was responsible for the necessary support of 
the deceased in his or her lifetime is also liable for 
his or her burial expenses. 3 

Generally, the estate of the deceased must pay the 
funeral expenses finally. 4 There is one exception, 

1 Gregory v. Hooker's adm'r, 1 Hawks (N. C.) 394 (1821). 

2 Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 
10 R. I. 227 (1872). 

3 Hapgood v. Houghton, exW, 10 Pick. (Mass.) 154 (1830). 

4 Rogers v. Price, 3 Y. & J. (Eng.) 28 (1828) ; Green v. Sal- 
mon, 3 N. & P. (Eng.) 388 (1838); Willeter v. Dobie, 2 K. & J. 
(Eng.) 647 (1856); Newcombe v. Beloe et al., L. R. 1 P. & D. 
(Eng.) 314 (1867;; Lightbown v. M'Myn, L. R. 33 Ch. Div. 
(Eng.) 575 (1886); Cunningham v. Reunion, 98 Mass. 538 (1868); 
Constantinides v. Walsh, exW, 146 Mass. 281 (1888) ; Rappelyea 
v. Russell. 1 Daly (N. Y.) 214 (1862) ; McCue, adm'r, v. Garvey, 
14 Hun (N. Y.) 562 (1878) ; Freeman, ex'r, v. Coit et al., 27 Hun 
(N. Y.) 447 (1882); Lucas v. Hessen et al, 13 Daly (N. Y.) 347 
(1885) ; Estate of John S. Hill, 4 Dem. (N. Y.) 69 (1886; ; 



FUNERAL EXPENSES. 



79 



however, and that is where one shows by his over- 
officiousness that he wishes and intends to pay the 
expenses himself. In such cases the law simply 
permits him to do so, if no one interested objects. 

In order to secure prompt and proper burial there 
is an implied promise on the part of the executor or 
administrator of an estate to pay whoever furnishes 
the services, coffin, etc., for the burial of the deceased 
out of the funds of the estate, so far as he has assets 
that can properly be applied to the same ; 1 and if he 
neglects or refuses to do so, he will be personally 
liable to the undertaker or other person for the 
amount. This is true, though the service was 
rendered and the supplies were furnished before the 
letters of administration were granted. The courts 
have several times been unsuccessfully asked to make 
a distinction between executors and administrators 
in this respect, and an endeavor has been made to 
show that the executor has an earlier and a broader 
authority to act. This rule concerning personal rep- 
resentatives applies to public administrators. 2 

This portion of the rule relative to the binding of 
personal representatives without their knowledge or 
consent is limited to those services and articles that 
must be ordered immediately ; it does not apply to 
gravestones, etc. 3 

Monlton, adm'r, v. Smith, adm'r, 16 R. I. 126 (1888) ; Mease v. 
Wagner, 1 McC. (S. C.) 395 (1821). 

1 Lentz v. Pilert, 60 Md. 296 (1883); Dampier v. St. Paul 
Trust Co., 46 Minn. 526 (1891) ; McCue, admW, v. Garvey, 14 
Han (N. Y.) 562 (1878) ; Kittle v. Huntley, 67 Hun (N. Y.) 617 
(1893). 

2 Rappelyea v. Russell, 1 Daly (N. Y.) 214 (1862). 

8 Samuel v. Estate of John Thomas, 51 Wis. 549 (1881). 



80 



MORTUARY LAW. 



The acts of administrators in reference to funeral 
expenses, so far as they are reasonable in kind and 
amount, bind the estate of the deceased ; 1 and they 
may be sued personally or in their representative 
capacity, as they are also personally responsible for 
the expenses if they contract for them. 2 And where 
an administrator is allowed in his account for an 
item of funeral expenses, he thus becomes person- 
ally liable to the person who furnished the subject 
of it. 3 

In a case where an administrator contracted for 
some headstones to be placed at the grave of the 
deceased, and he was removed from the trust before 
he had fully settled for them, the supreme court of 
New York held that a suit for the balance could be 
maintained against his successor ; though in the court 
of appeals the decision was reversed, the court stand- 
ing five to three. 4 

There is a class of cases which some courts hold to 
be an exception to the general rule, that the estate of 
a deceased person is primarily liable for his or her 
funeral expenses. These are the cases where a wife 
dies, leaving a husband. Some courts hold that 
the estate of the wife is not liable for her funeral 
expenses. 5 The general opinion, however, is the 

1 Ferrin v. Myrick, adm'r, 53 Barb. (N. Y.) 76 (1869). 

2 Trueman v. Tilden, 6 N. H. 201 (1833); Ferrin v. Myrick, 
adm'r, 53 Barb. (X. Y.) 76 (1869) ; Ferrin v. Myrick, adm'r, 41 
N. Y. 315 (1869). 

3 Trueman v. Tilden, 6 N. H. 201 (1833). 

4 Ferrin v. Myrick, adm'r, 53 Barb. (N. Y.) 76 (1869) ; Ferrin 
v. Myrick, adm'r, 41 N. Y. 315 (1869). 

5 Smyley, adm'r, v. Reese et al., 53 Ala. 89 (1875) ; Lott v. 
Graves, 67 Ala. 40 (1880) ; Staple's Appeal, 52 Conn. 425 (1884); 



FUNERAL EXPENSES. 



81 



other way. 1 The husband is responsible in the first 
instance, however, to any one who has furnished or 
ordered the necessary funeral and burial in cases 
where such acts on the part of the claimant are 
proper. 2 This is on the general ground that the 
husband is bound to supply his wife with neces- 
saries, and funeral expenses are within the rule. 3 
Of course, if the wife has no estate, or an estate 
insufficient to pay the expenses, the husband is 
primarily liable. 4 And a widow is bound by her 
contract for the furnishing of the funeral of her 
husband, who has no estate, even though she is a 
minor. 6 And if the husband, who is the adminis- 
trator of his wife's estate, dies before settling it, 
his estate has a lien on hers for the amount of her 
funeral expenses if he has paid them, and such claim 
is not barred by the statute of limitations. 6 

The fact that the wife was living separately from 

Willis v. Jones et al., assignees, 57 Md. 362 (1881); Sears v. 
Giddey, 41 Mich. 591 (1879) ; Dalrymple v. Arnold, adm'r, 21 Hun, 
(N. Y.) 110 (1880). 

1 Willeter v. Dobie, 2 K. & J. (En?.) 647 (1856) ; Cunningham 
v. Reardon, 98 Mass. 538 (1868); McCue, adm'r, v.Garvey, 14 
Hun (N. Y.) 562 (1878) ; Freeman, ex'r, v. Coit et al., 27 Hun 
(N. Y.) 447 (1882) ; Lucas v. Hessen et al., 13 Daly (N. Y.) 347 
(1885) ; Estate of John S. Hill, 4 Dem. (N. Y.) 69 (1886). 

2 Jenkins v. Tucker, 1 H. Bl. (Eng.) 90 (1788) ; Ambrose v. 
Kerrison, 10 C. B. (Eng.) 776 (1851); Bradshaw v. Beard, 12 
C. B., N. S. (Eng.) 344 (1862) ; Lightbown v. M'Mxjn, L. R. 33 
Ch. Div. (Eng.) 575 (1886); Staple's Appeal, 52 Conn. 425 (1884) ; 
McCue, adm'r, v. Garvey, 14 Hun (N. Y.) 562 (1878). 

8 Constantinides v. Walsh, ex'r, 146 Mass. 281 (1888). 
4 Estate of John S. Hill, 4 Dem. (N. Y) 69 (1886). 
6 Chappie v. Cooper, 13 M. & W. (Eng.) 252 (1844). 
6 Moulton, adm'r, v. Smith, adm'r, 16 R. I. 126 (18S8). 
6 



82 



MORTUARY LAW. 



her husband does not affect the liability that the 
law has placed upon him. 1 

A married woman's estate is bound for her funeral 
expenses, and not her husband, when she disposes of 
her estate by will making it subject to the payment 
of them ; 2 and even where she has property under a 
power of appointment only, and makes a will under 
the power for the benefit of her creditors, the prop- 
erty being insufficient to pay her debts, and the will 
containing no charge of debts or funeral expenses. 3 

The funeral expenses of a widow are not a charge 
upon, nor a debt against, the estate of her husband, 
who died before her. 4 

In the case of Sullivan v. Horner, adm'r, 6 a man 
and his wife and child were all killed at the same 
time by a collision on a railroad in Texas, and the 
husband's estate was held to be liable for the funeral 
expenses of all three. The reason of the decision is 
not stated, but it probably rested upon the assump- 
tion of the theory of the survival of the strongest. 

In the case of Wilson et al. v. Staats, exWf the 
equity court of New Jersey held that an executor 
was justified in paying the funeral expenses of an 
indigent sister of the testator, for whose support the 
income and principal if necessary of a certain sum 
of money was given by him. 

1 Ambrose v. Kerrison, 10 C. B. (Eng.) 776 (1851). 

2 Willeter v. Dobie, 2 K. & J. (Eng.) 647 (1856). 

3 Lightbown v. MMyn, L. R. 33 Ch. Div. (Eng.) 575 
(1886). 

4 Lawall et ux. v. Kreidler, exW, 3 Rawle (Pa.) 300 (1832) ; 
Mease v. Wagner, 1 McC (S. C.) 395 (1821). 

5 Sullivan v. Horner, adm'r, 41 N. J. Eq. 299 (1886). 

6 Wilson et al. v. Staats, ex'r, 33 N. J. Eq. 524 (1881). 



FUNERAL EXPENSES. 



83 



If the deceased was a pauper, and there is no one 
who is known to be responsible for his burial, the 
expense must be met by the public out of its treasury, 
whether it is the parish, town, county, or State. 1 

To whom Credit is given. — An executor is not liable 
to an undertaker or other person, although he may 
have sufficient assets of the estate, when the funeral 
was ordered by and the credit given to another 
person. 2 But if the person ordering the funeral had 
a right to do so, he can recover from the estate. 3 Of 
course the personal representative can ratify the order, 
and thus constitute the party ordering his agent; 4 or, 
become liable by promising to pay for the same. 5 

Practice. — A count against a personal representa- 
tive, charging him with a promise to pay the funeral 
expenses as such representative, may be joined with 
a count upon a promise made by the deceased. This 
promise of the representative may be an actual or an 
implied one. 6 

If the person who has paid the funeral expenses 
is a debtor of the estate, and is sued for the debt, he 
must plead the amount paid for the funeral expenses 
as a set-off, and not in payment of his debt. 7 

1 Queen v. Stewart et al, 12 Ad. & El. (Eng.) 773 (1840) ; 
Walker et al, comWs, v. She/tall, 73 Ga. 807 (1884) ; Hadsell et 
al. v. Hadsell et al, 7 Ohio C. C. 196 (1893). 

2 Rogers v. Price, 3 Y. & J. (Eng.) 28 (1828) ; Lucas v. 
Hessen et al, 13 Daly (N". Y.) 347 (1885). 

3 Lucas v. Hessen et al, 13 Daly (N. Y.) 347 (1885). 

4 Brice v. Wilson, 3 N. & M. (Eng.) 512 (1834); Lucas v. 
Hessen et al, 13 Daly (N. Y.) 347 (1885). 

5 Brice v. Wilson, 3 N. & M. (Eng.) 512 (1834). 

6 Hapgood v. Houghton, exW, 10 Pick. (Mass.) 154 (1830); 
Gregory v. Hooker's adm'r, 1 Hawks (N. C.) 394 (1821). 

7 Adams, adm'r, v. Butts, 16 Pick. (Mass.) 343 (1835). 



84 



MORTUARY LAW. 



The personal representative obtains his reimburse- 
ment of the amount which he has paid for funeral 
expenses by making it an item to his credit in 
the account of his settlement of the estate with the 
probate court. 1 He cannot sue himself as such rep- 
resentative for the amount he has thus paid out. 2 

In the case of Fay v. Fay, 2, the New Jersey court 
held that, where the personal representative paid a 
claim for funeral expenses, taking no assignment 
thereof from the undertaker, and there was no evi- 
dence that the payment was otherwise than voluntary, 
or that it was his intention to keep the claim alive, 
he was not entitled, by subrogation to the claim, to 
reimbursement out of the proceeds of the sale of the 
real estate of the deceased, there being no personal 
assets. 

In the case of Van Orden v. Krouse et aZ., 4 a 
woman died intestate, leaving an insolvent husband, 
and no administration was granted on her estate. It 
was held that the undertaker, who buried her with- 
out being requested by any one to do so, furnishing 
all necessary articles for her burial and interment, 
could not impress a trust upon her real estate 
therefor. 

MORTUAEIES. 

Mortuaries were originally gifts made to the min- 
ister of the parish, on the death of one of his parish- 
ioners, as a sort of amends to the clergy for any 
tithes, etc., which the deceased had possibly neglected 

1 Gregory v. Hooker's adm'r, 1 Hawks (N. C.) 394 (1821). 

2 Phillips v. Phillips, 45 Pac. Rep. (Mont.) 221 (1896). 
a Fay v. Fay, 43 N. J. Eq. 438 (1887). 

4 Van Orden v. Krouse et al, 89 Hun (N. Y.) 1 (1895). 



FUNERAL EXPENSES. 



85 



or forgotten to pay. This was not only an ancient 
English custom, but it prevailed in early times, and 
perhaps still does, in several countries. In France, 
a man who in his will failed to provide for them 
was formerly deprived of Christian burial; but if 
he died intestate, he would receive the rites of the 
church, and arbitrators would be appointed to deter- 
mine the amount that his estate should pay to the 
minister. Originally, it was customary to bring 
the mortuary to the church with the remains of the 
deceased at the time of the burial. As early as the 
time of Henry III., the practice had become a custom 
having the effect of law, and such a provision was 
deemed in England a necessary ingredient of every 
will. It soon became necessary, in order to prevent 
undue exaction, fraud, and litigation, to make a law 
governing the practice. The statute of 21 Henry 
VIII., chapter 6, 1 was accordingly enacted, reducing 
mortuaries to a certainty. The statute allowed the 
application of the custom of paying mortuaries to men 
who were householders only, and had estates above a 
certain value. 

Probably this practice never prevailed in the 
United States. 



] In A. D. 1530. 



86 



MORTUARY LAW. 



CHAPTER XL 

MONUMENTS, GRAVESTONES, ETC. 

Stones are placed at each end of a grave to mark 
and define the spot, that it may be known and pro- 
tected. Gravestones and monuments are erected 
primarily for the same purpose. They are larger 
and often more elaborate than they need to be, but 
something is necessary, and modern usage has made 
them so common that their cost is allowed as a part 
of the funeral expenses. 1 They are connected with 
the burial, and logically have their place with the 
burial expenses. 

This is one of that class of funeral expenses which 
are not contracted for as others are, because of the 
necessity of the situation. Tombstones need not be 
and are not erected until some months after the 
death takes place; and the personal representatives 
have ample time to make their own contracts 
therefor. Indeed, the estate can be settled as well 

1 Van Emon et at. v. Superior Court, 76 Cal. 589 (1888); 
Crapo, ex'r, v. Armstrong, 61 Iowa 697 (1883) ; Griggs, adrn'r, v. 
Veghte et al, 47 N. J. Eq. 178 (1890) ; Owens v. Bloomer, adm'x, 
et al., 14 Hun (N. Y.) 296 (1878); Porter's Estate, 77 Pa. St. 43 
(1874) ; Moulton, adrn'r, v. Smith, adrn'r, 16 R. T. 126 (1888). 
See Sweeney v. Muldoon, adrn'r, 139 Mass. 304 (1885). 



MONUMENTS, GRAVESTONES, ETC. 



87 



without procuring them. 1 They are not deemed by 
the law to be so necessary that they must be erected. 

In most countries graves have been marked by 
monumental stones, generally of the stone slab style. 
In early times in England, when burials were fre- 
quently made in churches, the family of the deceased 
had the right to erect such slabs in the churches; 
and when out of door burial became common, similar 
slabs were placed upright at the head of the grave. 
The custom has become common, and the plain slab 
in many instances has given place to monuments 
of various sizes, shapes, and material, and most 
elaborate in design and finish. 

Public monuments, such as soldiers' monuments, 
and statues, do not come within the scope of this 
branch of the law. 

WHO CAN CONTRACT THEREFOR ? 

The personal representative of the deceased is the 
person to procure the tombstone, and he is the only 
one who can make a contract therefor which will 
bind the estate. An administrator can erect a tomb- 
stone of more than ordinary value over his intestate's 
grave, though a step-son of the deceased promised 
him that it should be done. 2 If the administrator 
procures them in his representative capacity, the 
expense will be a charge upon the estate. 3 And 
though he gave his personal note therefor, the court 

1 Polly Fairman's Appeal, 30 Conn. 205 (1861). 

2 Donald v. McWhorter, 44 Miss. 124 (1870). 

3 Foley, adm'r, v. Bushway, 71 111. 386 (1874) ; Lerch, ad?n'r, 
v. Emmett et al, 44 Ind. 331 (1873) ; Laird et al. v. Arnold, adm'r, 
et al., 42 Hun (N. Y.) 136 (1886). 



88 



MORTUARY LAW. 



should if possible hold that it was given as collat- 
eral security only. 1 

The Iowa court holds 2 that the widow or heirs of 
the deceased may ask the court to cause a monument 
to be erected, if the personal representative refuses ; 
but the Massachusetts court 3 holds to the contrary. 
Neither of the cases in which this question has been 
under advisement in the States named is sufficiently 
definite to settle the position of the courts thereon; 
and the question is still open. The fact, however, 
that a personal representative may know that a 
monument is being erected by the widow of the 
deceased cannot bind him or the estate. He may be 
presumed to suppose that she is erecting it on her 
own account. This she has the right to do, and it 
would be impertinent in him to object thereto. 4 

Husbands and wives have the first right to erect 
tombstones over one another's graves. 5 In the case 
of Durell v. Hat/ward, 6 the husband of the deceased 
caused her remains to be properly interred, and the 
mother of the deceased, without the husband's knowl- 
edge or consent, procured and placed at the grave a 
memorial stone inscribed as follows : — 

In Memory of 
HARRIET M. HAYWAED, 

daughter of 
David and Almira Durell, 
Born April 11th, 1828, 
Died June 13th, 1853. 

1 Laird et al. v. Arnold, adm'r, 25 Hun (N. Y.) 4 (1881). 

2 Crapo, ex'r, v. Armstrong, 61 Iowa 697 (1883). 

8 Sweeney v. Muldoon, adm'r, 139 Mass. 304 (1885). 
4 Foley, adm'r, v. Bushway, 71 111. 386 (1874). 
6 Durell v. Hayward, 9 Gray (Mass.) 248 (1857). 



MONUMENTS, GRAVESTONES, ETC. 89 

As soon as the husband discovered the presence of 
the stone, he caused it to be removed, and a new one 
to be erected in the same place. The mother then 
brought an action of tort against the husband for 
removing the stone. When the husband removed it, 
he gave no notice whatever to the mother of what he 
intended to do, or had done, but after the suit was 
brought he tendered the stone to her, and she refused 
to receive it. The court held that he had a right to 
remove any obstruction that was in the way of the 
exercise of his right to erect a stone, and that he was 
not liable in this action. 

AMOUNT ALLOWED. 

A simple and inexpensive gravestone is always 
proper to be set up, and probably the court would in 
all cases, whether the estate was solvent or insolvent, 
allow the cost of it. 1 If the estate is insolvent, the 
simplest and cheapest tablet should be secured, if 
any. 2 The executor or administrator has ample 
time to discover the condition of the estate before he 
need erect any memorials, and he cannot excuse an 
excessive outlay on the plea of ignorance. And the 
same is true of enclosing the cemetery lot. 3 Where 
the estate is solvent, the administrator ought to con- 
sult the heirs, and have the advice and approbation 
of the court in which the estate is being settled, 

1 BendaWs distributees v. BendalVs adm'r, 24 Ala. 295 (1854); 
Cornwell v. Deck, 2 Redf. (N. Y.) 87 (1874); contra, Estate of G. 
A. Erlacher, 3 Redf. (N. Y.) 8 (1877); Estate of Owen Rooney, 3 
Redf. (N. Y.) 15 (1877). 

2 Polly Fairman's Appeal, 30 Conn. 205 (1861). 

3 Estate of G. A. Erlacher, 3 Redf. (N. Y.) 8 (1877). 



00 



MORTUARY LAW. 



before spending any considerable sum of money for 
this purpose. 1 In New Hampshire, in 1860, the 
court held that in cases where the estate amounted 
to not more than three thousand dollars, from fifteen 
to thirty dollars only should be allowed for grave- 
stones. 2 In the settlement of an estate in New 
York, the personal assets of which were two thousand 
dollars, two hundred dollars was held not to be 
extravagant for a tombstone. 3 In an estate of eight 
thousand dollars, in the same State, the expenditure 
of five hundred dollars for such a purpose was held 
to be extravagant, and not to be allowed. 4 One 
hundred and seventy-five dollars was allowed in the 
settlement of another estate in New York, where the 
deceased left a widow but no issue, and the estate 
amounted to several thousand dollars more than the 
debts due from it. 6 In a case where the deceased 
left a good estate, and no children, and the widow, 
who was entitled to one half of the estate, wished to 
be liberal in honoring her husband's memory, caused 
a handsome tombstone to be erected over the vault 
in which his body lay, the claim was allowed. 6 In 
all cases of solvent estates, in deciding the amount 
that ought to be expended for a monument or tomb- 
stone, due attention and consideration ought to be 
given to the usages of the region, and the station in 
life and circumstances of the deceased, as well as to 

1 Polly Fairman's Appeal, 30 Conn. 205 (1861). 

2 Lund v. Lund, 41 N. H. 355 (1860). 

8 Campbell v. Purdy, 5 Redf. (N. Y.) 434 (1881). 

4 Owens v. Bloomer, adm'x, et al, 14 Hun (N. Y.) 296 (1878). 

6 Estate of Alfred Allen, 3 Dera. (N. Y.) 524 (1884). 

6 Appeal of Ann M'Glinsey, adm'x, 14 S. & R. (Pa.) 64(1826). 



MONUMENTS, GRAVESTONES, ETC. 



01 



the size of his estate. 1 The judge of the court in 
which the estate is being settled is required to decide 
as to the amount to be allowed for gravestones, 
monuments, etc. 2 

Where land is devised subject to a charge for the 
" just debts and funeral expenses " of the testator, 
the court is to decide as to the amount to be paid 
out for such expenses. 3 

Desires expressed orally. — The court will regard 
an oral expression of a desire on the part of the 
deceased, as well as one made in a will. In a case 
where the estate amounted to eight thousand dollars, 
and was bequeathed to collateral relatives, the tes- 
tator leaving neither widow nor children, the court 
allowed a credit of two hundred and ten dollars in 
the personal representative's account for a marble 
tombstone, for which the testator had orally expressed 
a wish. 4 

Directions in Wills. — A testator may provide in 
his will for suitably marking his grave, and for the 
adornment and beautifying of the burial places of 
the dead. 5 Such a direction in a will is not a legacy, 
but a part of the funeral expenses. If the rights of 
creditors are affected by such a direction, it has no 
force as against them. 6 In the case of Ford, $c. v. 

1 Crapo, exW, v. Armstrong, 61 Iowa 697 (1883); Griggs, 
adm'r, v. Veghte et al, 47 N. J. Eq. 178 (1890). 

2 Polly Fairman , s Appeal, 30 Conn. 205 (1861) ; Crapo, ex'r, 
v. Armstrong, 61 Iowa 697 (1883). 

8 Polly Fairman's Appeal, 30 Conn. 205 (1861). 

4 Bendall's distributees v. Bendall's adm'r, 24 Ala. 295 (1854). 

5 Ford, &c. v. Fords exW, 91 Ky. 572 (1891). 

« Wood et al. v. Vandenburgh et al. , 6 Paige (N. Y.) 277 (1837). 



92 



MORTUARY LAW. 



Ford's ez'r, 1 the Kentucky court held that an appro- 
priation of this kind would he for a charitable pur- 
pose if the monument was to be erected in memory 
of the deceased and his wife, but would not be if it 
was erected for himself alone. In this case, after 
providing for the payment of his debts, the funeral 
expenses of himself and wife (there being no chil- 
dren), costs of administration, and a life estate in 
all his property given to his wife, the testator 
directed that all of the estate remaining at his wife's 
decease be used "for the erection of a monument of 
the best quality of marble or granite over the graves 
of my said wife and myself, of such size as the money 
thus arising will be sufficient to pay for." There 
was about six thousand dollars remaining in the 
estate at the decease of the wife. The court up- 
held the will, upon the ground that it was not a 
perpetuity. 

While it is competent for a testator to devote his 
whole estate to the erection of a monument to his 
memory, he must designate his intention in defi- 
nite terms. 2 In the case of Umans, ex'r, v. Hickman 
et al. 2 in the New York court, where a testator be- 
queathed his entire estate to his executor " for my 
funeral expenses and the erection of a monument to 
my memory," in a certain cemetery, and the estate 
amounted to twelve hundred dollars, the court decided 
that there was no expressed intention of spending 
his whole estate for the purpose named, but only so 
much as would be suitable to his condition in life. 
The court held that one hundred and fifty dollars 

1 Ford, Sfc. v. Ford's exW, 91 Ky. 572 (1891). 

2 Emans, ex'r, v. Hickman et al, 12 Hun (N. Y.) 425 (1877). 



MONUMENTS, GRAVESTONES, ETC. 



93 



was a proper amount to be devoted to that purpose, 
and the balance was ordered to be paid to the 
heirs. 

If a testator directs his executor to erect over his 
grave a suitable monument, and leaves the selection 
of the style and expense of it to the executor's discre- 
tion, the New York courts hold that the discretion 
must be exercised according to law and its prin- 
ciples. That is, the executor must have the same 
judgment as the court, and the effect of the rule is 
that the executor is left without the discretion given 
in the will, thus making that portion of it void. 
The court is still to say what can be allowed against 
the estate under such a will. 1 In the settlement of 
the Estate of Emma J. Lucky," 1 in the New York 
courts, where a testatrix directed her executor, in 
her will, to erect over her grave a suitable monument, 
leaving the selection of the style and expense of it 
to his discretion, and he procured a monument cost- 
ing fourteen hundred and fifty-five dollars, the court 
refused to allow more than seven hundred dollars for 
the expense of it in his account. The value of the 
personal assets of the estate was eleven thousand 
and ninety-six dollars. The rule is the same when 
the direction is for the erection of a monument over 
the graves of both the testatrix and her husband. 3 
In the New York case of Burnett v. Noble, 4 - a testa- 
trix directed her executor, in her will, to erect a 

1 Estate of Emma J. Luchy, 4 Redf. (N. Y.) 95 (1879); Bur- 
nett v. Noble, 5 Redf. (N. Y.) 69 (1880). 

2 Estate of Emma J. Luchy, 4 Redf. (N. Y.) 95 (1879). 
« Burnett v. Noble, 5 Redf. (N. Y.) 69 (1880). 

< Burnett v. Noble, 5 Redf. (N. Y.) 69 (1880). 



94 



MOETUAKY LAW. 



suitable monument over the graves of herself and 
her husband, leaving the selection of the style and 
amount of the expense of it to the discretion of the 
executor; the executor petitioned the court in which 
the estate was being settled for liberty to reserve 
from the assets of the estate the sum of seven hun- 
dred dollars with which to purchase the monument. 
The estate amounted to less than two thousand 
dollars, and the court would allow but two hundred 
and fifty dollars for this purpose. 

The court in Pennsylvania holds, however, that 
the discretion is in the executor and not in the court 
in such cases, and this is apparently the sounder 
rule. In the settlement of Ingles' 1 Estate, 1 a testator 
directed his executors, in his will, to erect a certain 
monument described therein, " the cost thereof to be 
five thousand dollars or thereabouts." The court 
held that the discretion of the executors was limited 
to that sum. They purchased one for thirty-five 
hundred dollars, and the court allowed it. In the 
case of Bainbridge's Appeal, 2 a testator directed his 
executor, in his will, "to appropriate" the residue of 
his estate, and the same "to use for and in the erec- 
tion and construction of a suitable monument at my 
grave, such as the amount of funds in his hands will 
warrant." The residue amounted to eight hundred 
dollars, and the executor procured a monument for 
seven hundred and fifteen dollars, and that amount 
was allowed by the court. 

Where a testator ordered that five thousand dollars 
should be expended for the improvement of his burial 

1 Ingles' Estate, 76 Pa. St. 430 (1874). 

2 Bainbridge's Appeal, 97 Pa. St. 482 (1881). 



MONUMENTS, GRAVESTONES, ETC. 



lot in a cemetery, in building a wall around it, and 
in procuring a monument, etc., the five thousand 
dollars were exhausted in building the wall, and the 
court ordered the executor to expend an additional 
sum for the monument, as the monument was the 
principal thing for which the appropriation was 
made, and the estate large. 1 

ALLOWANCE FOR TWO TOMBSTONES. 

Where an inexpensive tombstone has been erected 
over the grave of the deceased, and the body has 
been subsequently removed to another place, the 
court may allow the expense of a new tombstone 
over the new grave. 2 In the settlement of Howard's 
Estate, 2 in the New York courts, the estate being 
solvent and amounting to over six thousand dollars, 
the executor was allowed three hundred dollars for 
such a second tombstone. 

EXCHANGE OF MONUMENTS. 

In the New York case of the Accounting of James 
Frazier et al, ex'rs, 3 a testator in his will directed 
his executors to expend not more than two thousand 
dollars " in repairs " of a cemetery lot. Under that 
authority a sarcophagus was erected on the lot at an 
expense of five hundred dollars, and the testator's 
remains were placed therein. A monument was 
already on the lot, and the executors exchanged it 
for a better one; headstones were erected at the 
graves, and the coping was replaced, at a cost of nine 

1 Porter's Estate, 77 Pa. St. 43 (1874). 

2 Howard's Estate, 3 Del. (N. Y.) 170 (1893). 

3 Accounting of James Frazier et al., ex'rs, 92 N. Y. 239 (1883). 



96 



MORTUARY LAW. 



hundred and thirty-five dollars. It was held that 
all these expenditures were within the authority and 
discretion of the executors, and were rightly included 
in "repairs." 

INSCRIPTIONS. 

The earliest epitaphs were Egyptian, and were at 
first inscribed on coffins. They usually commenced 
with a prayer to Osiris or Anubis on behalf of the 
deceased, which was followed by his name, descent, 
and office. There was no attempt to delineate his 
character, nor express the feelings of the survivors. 

The ancient epitaphs of the Greeks had excellent 
literary qualities, were strong and often tender in 
feeling, rich and varied in expression, and usually 
epigrammatic in form. Their earlier epitaphs were 
generally written in verse, and the later ones in 
prose. 

The Roman epitaphs are simply a record of facts, 
the name and age, and sometimes one or two other 
particulars of the deceased. They began with the 
letters D. M. or D. M. S., being initials of Biis Ma- 
nibus or Diis Manibus Sacrum, and terminated with 
the name of the person who caused the urn to be 
made, and a simple statement of his relationship to 
the deceased. 

Most of the inscriptions in England between the 
twelfth and fourteenth centuries contain an address 
to the reader in the first person, in which the deceased 
states his rank, and contrasts it with his doleful 
state in the grave, warning the reader to prepare for 
the inevitable change, and closing with a request for 
his prayers, with an invocation of blessing upon him 



MONUMENTS, GRAVESTONES, ETC. 



07 



if he heeds it. In the time of Elizabeth, they began 
to assume a literary character. English epitaphs 
represent a greater variety of intellectual and emo- 
tional states than those of any other nation. 

American inscriptions are generally simple, most 
of them being only a statement of the name of the 
deceased, his age, and date of death. Near the close 
of the eighteenth century a few lines of poetry appli- 
cable to the occasion began to be added. 

The inscriptions are nearly always more extended 
than is strictly necessary for the purpose legally 
intended to be accomplished by the tombstone, but 
the expense of its engraving will be allowed if it 
comes within the range of the customary inscrip- 
tion. 1 If the estate of the deceased is insolvent, 
only the simplest epitaph ought to be allowed to be 
paid for out of the estate. 

In the English case of Keet v. Smith et al., 2 a 
daughter of Rev. H. Keet, a Wesleyan minister of 
the gospel, was buried in the churchyard of the 
parish in which he resided, and the incumbent of 
the parish refused to allow a stone with an inscrip- 
tion describing the deceased as "the daughter of 
Rev? H. Keet, Wesleyan Minister," to be erected 
over her grave, the title of " Rev? " being objection- 
able to him. The court held that there was nothing 
offensive about it, that it was not a title of honor or 
dignity, that a person prefixing it to his name did 
not thereby claim to be a person in holy orders, and 
that ministers of every denomination should have a 
right to it alike. It is a comparatively modern 

1 Polly Fairman's Appeal, 30 Conn. 205 (1861). 

2 Keet v. Smith et al., L. R. 1 P. Div. (Eng.) 73 (1875). 

7 



98 



MORTUARY LAW. 



title, having been used as such distinctively since 
the latter part of the seventeenth century only. The 
inscription was as follows : — 

In Loving Memory of 
ANNIE AUGUSTA KEET, 

THE YOUNGER DAUGHTER OF 

THE BEV? H. KEET, 

Wesleyan Minister, 
who died at Owston Ferry, 

May 11th, 1874, 
aged 7 years and 9 months. 
Safe sheltered from the storms of life. 

Whoever rightfully erects a tombstone has an ac- 
tion in trespass against any one who erases the in- 
scription. 1 In the case of Spooner v. Brewster, 2 the 
parents of the deceased, who was a married woman, 
erected a tombstone over her grave, having inscribed 
on its face, " Sacred to the memory of Eleanor Grave- 
nor," and on its back, "The family grave of John 
and Sarah Spooner," the names of the erectors. The 
husband of the deceased had a stone-cutter erase 
the inscription on the back, and the court held the 
husband liable. 

If coats of arms are put upon a monument in a 
churchyard, neither the ordinary, parson, church 
warden, nor any other person, can injure them with- 
out becoming responsible therefor in damages to the 
heirs of the deceased. 3 

1 Spooner v. Brewster, 2 C. & P. (Eng.) 34 (1825) ; Spooner 
v. Brewster, 3 Bing. (Eng.) 136 (1825). 

2 Spooner v. Brewster, 2 C. & P. (Eng.) 34 (1825). 
8 Day v. Beddingfield et al, Noy (Eng.) 104 (1637). 



MONUMENTS, GRAVESTONES, ETC. 99 



BOUNDS AND FENCES. 

Bound stones, curbing, and fences are also to be 
erected and paid for out of the estate as part of the 
funeral expenses. 1 

PROPERTY IN MONUMENTS. 

The tombstones and monuments erected over 
graves are chattels, but they cannot be sold or be- 
queathed. Neither can they be devised. They are 
in the nature of heirlooms, and descend to the heirs. 
They are regarded as the property of those who 
erect them, for the purposes of protection. 2 

1 Polly Fairman's Appeal, 30 Conn. 205 (1861). See Tuttle, 
adm'r, v. Robinson, 33 N. H. 104 (1856). 

2 Spooner v. Brewster, 2 C. & P. (Eng.) 34 (1825). 



100 



MORTUARY LAW. 



CHAPTER XII. 

PERMITS TO TRANSPORT, BURY, AND EXHUME 
DEAD BODIES. 

A proper respect for the quiet repose of the dead, 
regard for the tender sensibilities of the living, and 
due preservation of the public health, require that 
dead bodies should not be transported, buried, nor 
disinterred, except for good cause and with due care. 1 
Public boards are everywhere appointed to regulate 
and control these services, and every case is decided 
separately. If the circumstances are proper, per- 
mits are issued. These are required, not only to 
preserve the public health and to prevent contagious 
diseases, but to detect and punish crime. These 
purposes plainly show that such requirements are 
necessarily within the authority of a municipality, 
in the exercise of its police powers and duties. 
Ordinances making it a crime either to transport, 
bury, or exhume dead bodies without such permit 
are reasonable and valid. 3 

To Transport. — See Chapter XIII., entitled Trans- 
portation op Dead Bodies. 

To Bury. — Police powers are always legal and 
proper, and nothing can be exempt from their con- 

1 Secor's Case, 13 Leg. Int. 268. 

2 Graves v. City of Bloomington, 17 Bradw. (111.) 476 (1885). 



PERMITS. 



101 



trol. Ordinances compelling procuration of permits 
to bury before the interment of dead bodies are as 
binding upon cemetery associations as upon indi- 
viduals. Chartered rights are not infringed thereby, 
even though the association was incorporated many 
years before the ordinance was passed, and even 
before the incorporation of the city. 1 

When an ordinance says that "every person 
engaged or concerned in a burial " is responsible for 
burying a dead body without a permit, it ought not 
to be so construed as to include all those persons 
who are present at the interment from motives of 
sympathy and friendship, and assist therein ; but it 
ought to include "those who cause or procure the 
burial and are responsible for the expense of it, and 
those who as a matter of business and for compensa- 
tion prepare the grave and fill it up after the body 
has been placed therein. " 1 

If the burial ordinances of a city require a physi- 
cian's certificate of the cause of the death of the 
deceased to be filed with the proper officer before a 
burial permit is granted, and a post mortem exami- 
nation is necessary to the determination of the cause 
of death, the physician who, at the request of the 
undertaker, is to make the certificate, may perform 
an autopsy of the remains in a decent and scientific 
manner, having due regard to the sex of the deceased 
and the feelings of the family, and without undue 
exposure, although the relatives do not consent to it. 2 
In the case of Cook et al. v. Walley <f Rollins et al., 2 a 
woman who lived apart from her husband and chil- 

1 Graves v. City of Bloomingion, 17 Bradw. (111.) 476 (1885). 

2 Cook et al. v. Walley 8f Rollins et al., 1 Col. App. 163(1891). 



102 



MORTUARY LAW. 



dren suddenly died in a hack while riding with a 
man other than her husband. The man delivered the 
body to an undertaker, by whom a physician was re- 
quested to make and sign a certificate of her death, 
its cause, etc. The cause of her death could not be 
determined without an autopsy, which the under- 
taker permitted, but which was made without the 
consent of the family of the deceased. The heirs of 
the dead woman brought a suit for damages against 
the undertaker, but the court decided that the action 
could not be maintained. 

If the by-laws of a cemetery association require 
parties having the right to make interments in its 
cemetery to procure a permit from its officers before 
doing so, and they unreasonably and arbitrarily refuse 
to issue it, they can be compelled to do so by manda- 
mus. 1 In the case of Mt. Moriah Cemetery Association 
v. Commonwealth, 1 the permit was refused because 
the body was that of a colored woman. 

To Exhume. — In Rome, a dead body could not be 
exhumed except by permission of the Pontifical 
College; and in the provinces by the permission of 
the governor. 2 

In the common law countries such permits are 
now issued in proper cases as a matter of course, 
under modern statutes. 

1 Mt. Moriah Cemetery Association v. Commonwealth, 81 Pa. 
St. 235 (1876). 

2 Pierce et icx. v. Proprietors of Swan Point Cemetery et al., 10 
R. I. 227 (1872). 



TRANSPORTATION OF DEAD BODIES. 103 



CHAPTER XIII. 

TRANSPORTATION OF DEAD BODIES. 

Before the days of railroads, dead human bodies 
were rarely conveyed to a distance ; but now trans- 
portation by steam cars is so expeditious and gentle 
that remains are frequently carried to distant places. 
Railroads generally require a person to travel with 
the corpse to superintend its transportation, and 
charge the same price for the carriage as though the 
person was alive. 

In the Indiana case of the Lake Erie <f Western 
R. R. Co. v. James, 1 the railroad company refused 
to transport a body because the permit attached to 
the box containing the remains failed to state the 
name of the physician who attended the deceased in 
his last illness, as required by the rules of the board 
of health. The majority of the court held that there 
must be a strict compliance with the rules before 
the railroad company could be compelled to trans- 
port the corpse. Chief Justice Lotz and Justice 
Reinhard insisted that it was a mere recital, and 
that the name was not necessary to the validity of 
the permit, and dissented from the opinion of the 
rest of the court. 

1 Lake Erie Sf Western R. R. Co. v. James, 10 Ind. App. 550 
(1894). 



104 



MORTUARY LAW. 



A railroad company must not be negligent in the 
transportation of bodies, or delay the same. A wife 
can recover damages for distress of mind occasioned by 
the negligence of a railroad company in delaying for 
one day the transportation of her husband's corpse. 1 
But where the railroad company made their contract 
with a stranger to the family, and the existence of 
the parents of the dead person was not disclosed to 
it, the deceased's mother cannot recover for her 
mental anguish and suffering on account of being 
deprived of a sight of the corpse, owing to the delay 
of the company in its transportation. The suffering 
of the mother could not have reasonably been in the 
contemplation of the company as a probable conse- 
quence of the breach of the contract. 2 

Statutory Regulations. — At common law it was 
only required that the bodies of deceased persons 
should be carried in a decent manner, covered from 
the view of the public, both for the respect of the 
deceased as well as the feelings of the public, and 
in such a manner as not to endanger the public 
health. Statutes have enlarged these duties, and now 
make necessary the securing of permits .or licenses 
to carry bodies to, from, or through a town, county, 
or State, as the case requires. These licenses are 
generally obtained, upon application to the proper 
municipal authorities, for a nominal fee. 

In England the matter of transportation of dead 
bodies is by statute placed in the hands of the public 
burial board. 3 

1 Hale v. Bonner et al, 82 Texas 33 (1892). 

2 Nichols v. Eddy, 24 S. W. Rep. (Texas) 316 (1894). 

3 41 & 42 Vict., c. 52, § 179. 



TRANSPORTATION OF DEAD BODIES. 105 



In the United States it is generally treated as 
local, and is under the control of municipal authori- 
ties, being within their police powers and duties. 

In Arkansas 1 and Kansas, 2 transfer permits, with 
proper coupons attached, are issued by local boards 
of health for the transportation of bodies that are to 
be carried for burial beyond the limits of the county 
in which the death occurred, and the coupons are to 
be detached and preserved by every common carrier, 
or the person in charge of any vessel, railroad train, 
or vehicle, to whom such dead bodies are delivered 
for transportation. 

In California, a permit from the board of health or 
health officer (if such a board or office exists), and 
from the mayor or other head of the municipal 
government of the city, town, or count}', in writing, 
must be first obtained to transport a disinterred body 
through the streets and highways of such city, town, 
or county. 3 

In Connecticut, the statute provides that no person 
shall remove bodies from or into the limits of any 
town in the State otherwise than for immediate 
burial in the cemetery adjacent to the town in which 
the person died, unless there is attached to the coffin 
or case containing such body a written or printed 
permit, signed by the registrar of deaths in said 
town, certifying to the cause of death or disease of 
which the person died; and if such disease or cause 
of death is shown by the permit to have been cholera, 
yellow fever, diphtheria, scarlet fever, small-pox, or 

1 Digest of Arkansas Statutes (1883), § 490. 

2 Kansas Corap. Laws (1885), page 539, § 3362. 
* Laws of California, Act of April 1, 1878, § 1. 



106 



MOKTUAEY LAW. 



other pestilential disease, the permit must further 
certify that the body is enclosed in an air-tight coflin 
or case hermetically sealed, or has been disinfected, 
or both. 1 

Dakota gave, by statute, the right to carry bodies 
through its territory, and to remove therefrom the 
bodies of the dead dying within it for the purpose of 
burying the same in other States or Territories. 2 

The Massachusetts statutes provide that no body 
shall be removed from any city or town until a per- 
mit has been issued by the board of health therein, 
or, if there is none, from the city or town clerk; 3 
and that no railroad corporation or other common 
carrier or person shall convey, or cause to be con- 
veyed, through or from any city or town in the 
Commonwealth, the body of any person who died of 
small-pox, scarlet fever, diphtheria, or typhoid fever, 
until the body has been so encased and prepared as 
to preclude any danger of communicating the disease 
to others by its transportation, and the permit for 
such transportation must be accompanied with a cer- 
tificate from the board of health of the city, or the 
selectmen of the town in which the death occurred, 
stating the cause of death, and that the body has 
been so prepared. 4 

In New York, the remains of persons dying within 
the State may be carried out of it for burial else- 

1 Statutes of Connecticut (1888), § 113. A heavy fine is 
placed upon any person signing a permit knowing it to be false, 
or permitting it to be used, with such knowledge. 

2 Dakota Penal Code, § 350. 

8 Acts of 1893. c. 263, § 2, amending Pub. Sts., c. 32, § 5. 
4 Acts of 1883, c. 124, § 2. 



TRANSPORTATION OF DEAD BODIES. 107 



where ; and bodies may be carried through the State, 1 
a permit being first obtained in all cases. 2 Bodies 
must not be detained by attachment or arrest on 
their way to burial. 3 Permits, with proper coupons 
attached, are issued by local boards of health for 
such transportation beyond the limits of the county 
in which the death occurred, and the coupons are to 
be detached and preserved by every common carrier, 
or the person in charge of any vessel, railroad train, 
or vehicle by which such bodies are transported. 4 
Bodies carried over railroads and in passenger steam- 
boats on rivers within the State must be enclosed in 
a hermetically sealed casket of metal or other in- 
destructible material, if the physician's certificate 
states the cause of death to have been a contagious 
or infectious disease. 5 

In Ohio, permits from the board of health are 
required to remove bodies to or from a city. 6 No 
one lawfully possessed of a corpse for surgical or 
medical study can remove it beyond the limits of 
the State, or transport or attempt to transport it, by 
railroad or other public conveyance, without its 
being securely enclosed in a box or case suitable for 
transportation. 7 

1 New York Code and Laws (1889), page 366, and Penal 
Code, § 307. 

2 New York Code and Laws (1889), page 1317. 

8 New York Code and Laws (1889), page 366, and Penal 
Code, §§ 314, 315. 

4 New York Code and Laws (1889), page 1314 ; Acts of 1880, 
c. 322, § 7. 

5 New York Code and Laws (1889), page 1324; Acts of 1886, 
c. 329, § 1. 

6 Ohio Rev. St. (1894), § 2119. 
' Ohio Rev. St. (1894), § 7035. 



108 



MORTUARY LAW. 



In Vermont, no body can be delivered for trans- 
portation, or transported, unless it is accompanied by 
a certificate signed by a physician legally qualified 
to practise medicine and surgery in that State, or by 
the attending physician if the death occurred with- 
out the State, stating that the deceased did not die 
of small-pox, Asiatic cholera, typhus fever, yellow 
fever, diphtheria, or scarlatina. If death occurred 
from diphtheria or scarlatina, the body must be 
wrapped in a sheet saturated with a solution of a 
half pound of chloride of zinc in a gallon of water, 
or a solution of bichromide of mercury of not less than 
two per cent strength, and encased in an air-tight 
zinc-, copper-, or lead-lined coffin, or in an air- 
tight iron casket, and enclosed in a strong wooden 
box, with the space between the coffin and the box 
filled with sawdust saturated with one of the above 
named solutions. The health officer must furnish a 
certificate of the cause of death, and the undertaker 
an affidavit as to how the body has been prepared 
and encased; and the health officer of the town, 
village, or city to which the body is consigned must 
consent to its receipt. 1 

i Vermont St. (1894), c. 193, §§ 4687-4689. 



EXHUMATION OF DEAD BODIES. 109 



CHAPTER XIV. 

EXHUMATION OF DEAD BODIES. 

The law against disturbing the repose of the dead 
has always been severe. The Franks banished from 
their society one who unearthed a corpse for the 
purpose of stripping it, and no one was suffered to 
relieve his wants, till the relatives of the deceased 
consented to the resumption of his former position 
in society. 1 

The law may be briefly stated to be, that, when a 
body has once been buried, no one has the right to 
remove it without the consent of the owner of the 
grave, or of the proper ecclesiastical, municipal, or 
judicial authority. 2 To do so without due authority 
is a misdemeanor at common law. 3 The motive 
with which this is done is no defence to the charge, 
even though it is laudable in itself. 4 In the case of 
Regina v. Sharped the son of a deceased woman, 
without leave from the custodians, entered a burying 

1 Blackstone's Commentaries, book iv., page 235* 

2 Weld v. Walker et at., 130 Mass. 422 (1881) ; Pierce et ux. 
v. Proprietors of Swan Point Cemetery et al, 10 R. I. 227 (1872). 

8 Regina v. Sharpe, Dears. & Bell (Eng.) 160 (1857); Com- 
monwealth v. Cooleij, 10 Pick. (Mass.) 37 (1830); Kincaid's Ap- 
peal, 66 Pa. St. 411 (1870). 

4 Regina v. Sharpe, Dears. & Bell (Eng.) 160 (1857) ; Regina 
v. Sharpe, 40 Eng. L. & Eq. 581 (1857). 

5 Regina v. Sharpe, 40 Eng. L. & Eq. 581 (1857). 



110 



MORTUARY LAW. 



ground belonging to a congregation of Protestant 
Dissenters, and disinterred her corpse, removing 
and reinterring it in a churchyard with the body of 
his father. The court held that the mere fact that 
the defendant acted from praiseworthy motives was 
no defence, and that relationship gave no right to 
take a body from the grave where it was buried. 

A person may be found guilty of the offence of an 
unlawful disinterment of a dead body, even though 
he was not actually present, if, with the intention 
of giving assistance, he is near enough to afford it 
if needed. 1 

The matter of regulating the exhumation of the 
dead, as well as their burial, with a view to sanitary 
purposes, has been regarded by all civilized nations 
in all times as a proper subject of local regulation. 2 
And this police power can be delegated by the legis- 
lature to municipal governments. 3 

The owner of a burial lot in a cemetery, in which 
he has buried his deceased child, can maintain an 
action of trespass quare clausum against the superin- 
tendent of the cemetery for disinterring and remov- 
ing the remains therefrom to "the charity lot," and 
there burying them in a grave containing two other 
bodies ; and in giving damages the father's feelings 
can be considered, if the superintendent acted in 
wilful disregard or careless ignorance of the father's 
rights. 4 But where one buries his dead, and erects 
a monument, on land in which he has no interest 

1 Tate v. State, 6 Blackf. (Tnd.) 110 (1841). 

2 In re Wong Yung Quy, 6 Sawyer (U. S., C. C.) 442 (1880). 

3 Kincaid's Appeal, G6 Pa. St. 411 (1870). 

4 Meagher v. Driscoll, 99 Mass. 281 (1868). 



EXHUMATION OF DEAD BODIES. Ill 



and no rights, without the consent of the owner and 
possessor of the premises, the latter can remove the re- 
mains and the monument before rights of burial are 
gained, by adverse possession or otherwise, without 
being liable to the family of the deceased therefor. 1 

Trouble sometimes arises from burying bodies in 
the lots of third parties. In such a case, if the 
owner of the lot refuses to permit the removal of a 
body thus interred, recourse may be had to a court 
of equity, but a proper case must be made out there 
before authority will be granted. In the case of 
Weld v. Walker et al., 2 the body of a married wo- 
man was buried in the lot of a stranger, with the 
consent of her husband, given while in great distress 
of mind and on the supposition that the burial was 
merely temporary, and the court of equity permitted 
the removal of the body and coffin and tombstones to 
the husband's lot, though three years had elapsed 
since the burial. The court also restrained the 
owner of the lot from interfering with such removal. 
In such a case a strong argument in favor of such a 
decision is, that where the body was then buried the 
husband had no right to care for and adorn the 
grave, nor to bury any one there, nor to have even 
his own remains lie there. But where a body 
has been interred in another lot with the free and 
fall consent and approval of the person having the 
right of burial, the court will not interfere without 
the consent of the owner of the lot. 3 This rule is 

1 Bonham v. Lneb, 18 So. Rep. (Ala.) 300 (1895). 

2 Weld v. Walker etal., 130 Mass. 422 (1881). 

a Weld v. Walker et al, 130 Mass. 422 (1881) ; Peters v. 
Peters et al, 43 N. J. Eq. 140 (1887). 



112 



MORTUARY LAW. 



so because the right of burial can be exercised but 
once. 1 In the case of Pierce et ux. v. Proprietors of 
Sivan Point Cemetery et al., 2 a woman removed the 
body of her deceased husband from its original place 
of burial, and claimed that she had the right to 
do so, as his widow, but the claim was successfully 
resisted by the children of the deceased. In the 
case of Wynkoop v. Wynkoop 3 a widow buried the 
body of her deceased husband in his mother's lot in 
a cemetery, and subsequently desired to remove his 
body to another cemetery, claiming a right to do so 
as his administratrix and widow; but the court of 
equity, whose assistance she sought, held that she 
had no such right as against the wishes of the hus- 
band's brothers, who opposed her bill. 

There are several ways in which the removal of 
bodies become necessary, as where a cemetery is 
taken for public purposes, or abated as a nuisance, 
or discontinued as a place of repose for the dead. 
In the case of Bessemer Land Improvement Co. v. 
Jenkins,* the plaintiff had notice that an old ceme- 
tery had been discontinued, and that parties were 
requested to remove the remains of their dead to the 
new burial ground provided by the defendant in lieu 
of the old; and on the plaintiff's failure to do so, 
the defendant removed the remains of the plaintiff's 

1 Guthrie v. Weaver, 1 Mo. App. 136 (1876); Wynkoop v. 
Wynkoop, 42 Pa. St. 293 (1862). 

2 Pierce et ux. v. Proprietors of Swan Point Cemetery et al., 10 
R. I. 227 (1872). 

3 Wynkoop v. Wynkoop, 42 Pa. St. 293 (1862). 

4 Bessemer Land &f Improvement Co. v. Jenkins, 18 So. Rep. 
(Ala.) 565 (1895). 



EXHUMATION OF DEAD BODIES. 



113 



child, which were buried therein, to the new burial 
ground, without his knowledge or consent and with- 
out particular notice that it was to be done. Suit 
was brought for disturbance of the remains, but the 
court held that the defendant was not liable. 

If a place of burial is taken for public purposes, 
the next of kin of those buried therein may claim to 
be indemnified for the expense of removing and suit- 
ably reinterring the remains. 1 

A corpse is not property, and therefore not a sub- 
ject of larceny. Grave clothes and other articles 
buried with it are property, however, and those who 
illegally exhume and carry them away may be in- 
dicted therefor at common law. 

An indictment for feloniously removing a body 
from the grave for the purpose of dissection and 
sale, with a count for feloniously receiving a dead 
body, knowing it to have been feloniously disin- 
terred, need not allege that the body was that of 
"a human being," and "a graveyard in the town of 
Bristol, Ontario County," is a sufficient description 
of the cemetery. 2 If the indictment alleges the 
cemetery to be the property of a certain religious 
parish, it need not be proved. 3 

Indignities offered to human remains in improperly 
and indecently disinterring them are grounds of an 
indictment, whether they were buried in consecrated 
or unconsecrated ground. 4 

1 Ruggles' Report, 4 Bradf. (N. Y.) 503 (1857). 

2 People v. Graves, 5 Parker (N. Y.) 134 (1860). 

3 Commonwealth v. Cooley, 10 Pick. (Mass.) 37 (1830). 

4 Foster v. Dodd et al, 8 P>. & S. (Eng.) 842 (1867). 

8 



114 



MORTUARY LAW. 



CHAPTER XV. 

CEMETERIES. 

The word cemetery primarily means a sleeping 
place. It was first applied to burying grounds by 
the early Christians. Cemeteries were at first not 
connected with churches, but after a few centuries 
of the Christian era had passed prominent or saintly 
persons of the parish began to be interred within 
the church. No person could or can be buried in a 
church without the consent of the rector, unless the 
owner of a manor-house prescribed it. This prac- 
tice of burying in churches was connected, some 
say, with the custom of praying for the repose of the 
souls of the dead. If this is so, it may be the reason 
why interments were made in the earth in the open 
area around the church, a practice which began about 
the year 750, and was brought to America by our 
English ancestors in the seventeenth century. 

In treating this subject, it ought to be ever borne 
in mind that cemeteries are not the property of one 
generation alone, either of the departed, or of the 
living, but of both, and of future generations as 
well. 

TOMBS. 

In the ancient days caves were much in demand 
as depositeries of the bodies of the dead. The first 



CEMETERIES. 



115 



recorded instance of a transfer of real estate is that 
of the cave of Machpelah in the end of Ephron's 
field, which Abraham bought of Ephron for the 
burial of Sarah. 1 

All the great roads leading into Rome are bor- 
dered on both sides, for a considerable distance, 
with rows of tombs ; and indeed this is true of all 
large Roman towns. 

By the Roman law there were two kinds of tombs, 
or rather two kinds of ownership of or right to use 
them. One was called familiaria, or such tombs as 
any one of the family had a right to be buried in, 
and the other hereditaria, which were for the builder 
and his heirs. 2 

Anciently, it was the custom to have tombs in 
churches. The owners of such tombs had no inter- 
est in the land, and could not prevent a sale of it 
together with the church building, and the law is 
the same still. Neither could the owners prevent 
the removal of the remains of the dead from the 
tombs, when required by law, as when it became a 
nuisance; and this is so even when the owner of 
such a tomb has devised real estate to the church 
society in trust "for keeping said tomb in good and 
decent repair." 3 Burials in tombs are liable to 
police regulations, the same as burials in the earth. 4 

If a man purchases a lot in a cemetery on which 

1 Genesis, chapter xxiii. 

2 Pierce et war. v. Proprietors of Swan Point Cemetery et al., 
10 R. I. 227 (1872). 

3 Solder et al. v. Trinity Church et al., 109 Mass. 1 (1871). 
Under the Trinity Church, in Boston, which this action con- 
cerned, there were seventy-four or more tombs. 

4 Sohier et al. v. Trinity Church et al., 109 Mass. 1 (1871). 



116 



MORTUARY LAW. 



to build a tomb, a vault, or similar construction, 
and obtains an absolute grant in fee simple to him 
and his heirs forever, it would seem that it ought to 
be perpetual, subject of course to police regulations. 
Abraham's purchase of the cave of Machpelah, " for 
a possession of a burying place," was of this perma- 
nent character. There was Sarah buried, and also 
himself, and Isaac and Rebecca; there Jacob buried 
Leah, and while sojourning in Egypt, and about to 
die, he made his son Joseph swear to remove his 
body to that sepulchre of his fathers, which was 
done through extreme labor and a generation of 
wandering in the wilderness. 1 

The sale of a lot in a cemetery on which to build 
a tomb carries with it a suitable right of way 
to it, and the purchaser has the right to remove in 
a reasonable manner structures built by vote of a 
parish, which owned the cemetery with the town, 
in such a way as to obstruct the entrance to the 
tomb. 2 In the case of Lakin v. Ames et al., 2 the 
son of the owner of the tomb, who was a widow, 
under an implied license arising from the relation- 
ship of the parties, it being a family tomb, and from 
the exigency of the occasion, for the purpose of 
depositing therein the corpse of another son of the 
owner, tore down a shed which obstructed the passage 
to it, and was acquitted by the court for the act. 

Receiving Tombs. — A great many cemeteries have 
large tombs in which to place bodies temporarily 
while awaiting interment. In the winter season, 

1 Matter of Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 
155 (1837). 

2 Lakin v. Ames et al., 10 Cush. (Mass.) 198 (1852). 



CEMETERIES. 



117 



when the ground is either frozen to a great depth, 
or it is covered by a large amount of snow, at the 
North, such receptacles are almost absolutely neces- 
sary. When spring opens, the bodies are removed 
to their respective graves. 

These tombs are usually built of brick or stone, 
and above ground, being ordinary buildings in the 
manner of their construction. 

In Germany, and also in many places in England, 
there are dead-houses, or similar institutions. Their 
purpose, however, is more extensive than that of the 
American tombs, being, first, to remove the bodies 
as soon as possible from the close dwellings of the 
living, and, second, to avoid premature interment. 
They are well ventilated, kept at even temperature, 
and each body rests on a bier. On one of the fingers 
is placed a ring connected by a light cord with a 
bell which hangs outside in the warder's room. A 
chapel, in which funerals are held, is in the same 
building. The use of such dead-houses is voluntary. 

WHAT CONSTITUTES A CEMETERY. 

A cemetery is a plot of land set apart for the 
burial of the dead ; and is created by the act which 
sets it apart, marking and distinguishing it from 
the adjoining land, with some avowal or act show- 
ing that it is intended for the purposes of burial. 1 
A religious consecration of the lot as a cemetery is 
such an act. 2 

1 Concordia Cemetery Association v. Minnesota Sf Northwest- 
ern R. R. Co., 121 111. 199 (1887). 

2 Beatty et al. v. Trustees of German Lutheran Church of 
Georgetown, 2 Peters (U. S.) 566 (1829). 



118 



MORTUARY LAW. 



Where a corporation is empowered to buy and sell 
land for burial purposes, the acceptance of a deed to 
it of a certain described lot of land does not give the 
plot described and conveyed the character of a ceme- 
tery. It does not become a cemetery technically 
until the corporation lays it out and opens it to the 
public for burial purposes. A part or the whole 
of it may be laid out, in the discretion of the cor- 
poration, but if the whole is not laid out only that 
portion having its peculiar attributes and character 
becomes a cemetery. It frequently happens that, in 
order to get the land desired, a larger tract has to 
be purchased. When this is done, the undesirable 
part can be sold without any of the characteristics 
of cemetery land attaching to it. 1 

In some States, cemeteries are defined by statute, 
as in California, where "six or more human bodies 
being buried at one place constitutes the place a 
cemetery. " 2 

As burial of dead bodies is the only possession, 
when claimed and known, necessary ultimately to 
complete ownership of the easement so as to render 
it inheritable as long as it is enclosed as a burial 
place, or even without enclosure as long as grave- 
stones stand marking the place as a burial ground, 
the possession is, from the nature of the case, neces- 
sarily, and therefore, in legal contemplation, actual, 
adverse, and notorious. Moreover, there cannot be 
an actual ouster of possession by an intruder, nor 
running of the statute of limitations in his favor, 

1 Concordia Cemetery Association v. Minnesota Sf Northwest- 
ern R. R. Co., 121 111. 199 (1887). 

2 California Political Code, § 3106. 



CEMETERIES. 



119 



while such gravestones stand there indicating by 
inscriptions the previous burial of another. 1 

ESTABLISHMENT OF CEMETERIES. 

An addition to a cemetery may be regarded as the 
establishment of a new burial ground, no matter 
how the old part is held. 2 

Where the reasons are sufficient, a cemetery com- 
pany can lay out new avenues and replot their burial 
ground, even against the wishes of the lot owners, 
who have made interments therein. The cutting 
of a new street through a cemetery by the public 
authorities is a good reason for replotting, lots 
being cut through and destroyed. New lots, how- 
ever, should be given to those lot owners who have 
suffered from the change. And this is true even 
when the lots have been conveyed in fee. 3 

In some jurisdictions, statutes provide that cem- 
eteries shall not be established within a certain 
distance of dwelling-houses. Such statutes are rea- 
sonable and valid. More concerning this prohi- 
bition will be found in Chapter XVI., entitled 
Prohibition of Cemeteries. 

kinds of cemeteries. 

The kinds of cemeteries are principally dependent 
upon the government that controls them. 

interments in Churches. — After two or three cen- 
turies of the Christian era had elapsed, some of the 

1 Hook, Sfc. v. Joyce, 94 Ky. 450 (1893). 

2 Edwards et ux. v. Stonington Cemetery Association, 20 Conn. 
466 (1850). 

8 Eootetal.v. Odd Fellows Cemetery Co., 148 Pa. St .494 (1892). 



120 



MORTUAKY LAW. 



leading lights of the church, or men prominent in 
the region, were buried in the church, generally of 
their own parish. Persons of pre-eminent sanctity 
were at first the only ones thus interred, but the 
rule was sometimes disregarded in favor of some 
who had more influence than Christianity, but who 
desired to be reckoned among the faithful of the 
Lord. The custom is by no means obsolete. Our 
forefathers in America brought the same idea from 
the mother country; and in several places in the 
Atlantic States such tombs can still be seen. Under 
the Trinity Church in Boston, as late as 1871, there 
were as many as seventy-four tombs, and in that 
year they were abolished by a special act of the 
legislature, on the ground that the continuance 
of the cemetery was dangerous to the health of 
the public. 

At common law, the only person who could 
license interments in a church was the parson, the 
frank tenement being in him only. Neither the or- 
dinary nor church wardens had authority in the 
matter. 1 

Churchyards. — As the space for tombs within and 
under the churches became less after interments in 
churches had become comparatively common, men 
less memorable were buried in enclosed places not 
connected with the church edifices. Churchyards 
began to be used as cemeteries in England about the 
year 750, through the influence of the Archbishop of 
Canterbury, Cuthbert, the idea coming from Rome. 
The space of ground adjoining the church was care- 
fully enclosed and solemnly consecrated by religious 

1 Day v. Beddingfield et al, Noy (Eng.) 104 (1637). 



CEMETERIES. 



121 



services, and appropriated to the burial of those who 
were, or who should thereafter be, entitled to attend 
religious services within the respective churches, 
without payment for the privilege of burial or the 
solemnization of the interment at common law, ex- 
cept when the payment of such a fee had been the 
immemorial custom of the parish; 1 and the law 
courts will compel burial if it is refused therein. 2 
A child of a Dissenter cannot be refused burial by 
a minister of the Church of England ; 3 but a non- 
resident of the parish should probably not be buried 
in the churchyard without the consent of the parish- 
ioners or church wardens whose parochial rights are 
thus invaded. 

Christians were glad to lie so near the sacred 
place of worship, where the living would be apt 
to see their graves, and think of them when they 
resorted thither for public worship. 

In Scotland, the obligation of providing and 
maintaining a churchyard rests on the heritors of 
the parish. They are its guardians, together with 
the kirk session. The right of burial appears to be 
strictly limited to parishioners, although some think 
that any person dying in the parish has the right 
of interment therein. The parishioners have no 
power of management. If the heritors fail to pro- 

1 Dean and Chapter of Exeter'' s Case, 1 Salk. (Eng.) 334 
(1707) ; Andrews v. Cawthorne, Willes (Eng.) 536 (1745) ; Gilbert 
v. Buzzard et al., 2 Hag. Con. Rep. (Eng.) 333 (1821) ; Pierce et 
ux. v. Proprietors of Swan Point Cemetery et al., 10 R. I. 227 
(1872). 

2 King v. Coleridge et al., 2 B. & Aid. (Eng.) 806 (1819); 
Ex parte Blackmore, 1 B. & Ad. (Eng.) 122 (1830). 

3 Kemp v. Wickes, 3 Phil. (Eng.) 264 (1809). 



122 



MOETUABY LAW. 



vide due accommodations, the presbytery of the 
church may interfere to compel it to be done, but 
they have no further jurisdiction. 

In England, and generally by the canon law, a 
wife was to be buried with her last husband, if she 
had more than one ; and on a permanent change of 
residence a man lost his right to be buried in the 
churchyard of the place of his former residence, and 
gained a right in the new parish. 1 

A parishioner is not entitled as of right to bury 
his dead relative in the churchyard as near to his 
ancestors as possible, 2 nor in any other particular 
part of the yard, or in a vault; 3 this is in the dis- 
cretion of the rector and church wardens. 4 This 
discretion must be exercised in each case as it 
arises, 6 and the right of exclusive burial in any 
part of the yard, or in a particular vault under 
the church, for a person and his family or friends, 
cannot be given by the rector by parol or by deed. 6 
If the rector has attempted to do this and a certain 
vault has been assigned, no action will lie for the 
disturbance of the same. 7 In the case of Nevill v. 
Bridger* it was held, however, that a vicar, being 

1 Pierce et ux. v. Proprietors of Sican Point Cemetery et al. , 10 
R. I. 227 (1872). 

2 Fryar v. Johnson, 2 Wilson (Eng.) 28 (1755) ; Pierce et ux. 
v. Proprietors of Swan Point Cemetery et al., 10 R. I. 227 (1872). 

3 Ex parte Blackmore, 1 B. & Ad. (Eng.) 122 (1830). 

4 Ex parte Blackmore, 1 B. & Ad. (Eng.) 122 (1830). 

6 Bryan v. Whistler, 8 B. & C. (Eng.) 288 (1828). 

e Bryan v. Whistler, 8 B. & C. (Eng.) 288 (1828) ; Bryan v. 
Whistler, 2 M. & R. (Eng.) 318 (1828). 

7 Bryan v. Whistler, 2 M. & R. (Eng.) 318 (1828). 

8 Nevill v. Bridger, L. R. 9 Ex. (Eng.) 214 (1874). 



CEMETEKIES. 



123 



the freeholder of the church and churchyard, 1 can 
make a special contract by virtue of which a non- 
parishioner could be buried in a particular vault in 
the church. 

The law of Scotland hesitates to give churchyards 
the ordinary incidents of real estate; and it is not 
certain to whom the soil belongs. The questions 
that arise are those relating to the title to the 
minerals in the ground, and to the grass and other 
products of the surface of the yard. 

Notwithstanding the sacred nature of the conse- 
crated churchyard, a right of way may be obtained 
through it by prescription. 

It was at common law a crime for a person to 
draw a weapon, even in self-defence, in a conse- 
crated churchyard. 2 

Denominational Cemeteries. — This class of ceme- 
teries consists of those that have been established 
and are controlled by some one denomination of the 
Church. The Catholic denomination is that which 
has most of such cemeteries, but they are not wholly 
confined to that sect. Among all denominations 
the burial of the dead is associated with the belief 
in the resurrection of the body, and funeral rites are 
based thereon. Even the rude forefathers of New 
England were " each in his narrow cell forever laid " 
in a burying ground established and controlled by a 
particular ecclesiastical sect, whose minister said a 
last prayer at the uncovered grave. 

It is lawful for the owner of land to sow it with 
whatever seed he pleases; so land owned by a 

1 Spoonerv. Bretvster, 3 Bing. (Eng.) 136 (1825). 

2 Day v. Beddinc/field et al, Noj (Eng.) 104 (1637). 



124 



MORTUARY LAW. 



church can just as legally be appropriated by it for 
the burial of a certain class of persons, upon such 
conditions as it sees fit. And it is perfectly legal to 
limit the class to those only who agree with the 
church in its religious beliefs. 1 And where persons 
have been buried there with the understanding that 
only people of their particular creed or faith shall 
be laid there, no one can acquire a right to disturb 
their peace by placing therein the remains of those 
who, under the laws of the church, have no right of 
sepulture therein. 2 If the trustees of a denomina- 
tional cemetery give a deed conveying a larger right 
than the rules of the church allow, it is valid only 
so far as such rules permit. The payment of money 
for the right of burial cannot affect it. 3 

Churches may sell lots and rights of burial in 
their cemeteries, or they may establish free burying 
grounds, which are the same as other free burial 
grounds, except that they are confined to the people 
of their denomination. 4 

In the case of Wall Street M. E. Church v. John- 
son et al., 5 real estate was bought by a church, the 
deed being made to three persons as " managers and 
trustees in trust " for the church, for cemetery pur- 
poses, and two years later the trustees were incor- 
porated with the common consent of the grantor, 

1 Application of St. Bernard St. Lawrence Cemetery Associa- 
tion, 58 Conn. 91 (1889). 

2 Dwenger et al. v. Geary et al., 113 Ind. 106 (1887). 

8 Price et al. v. M. E. Church et al, 4 Ohio 515 (1831). 

4 Antrim et al., tr's, v. Malsbury et al., 43 N. J. Eq. 288 
(1887). 

5 Wall Street M. E. Church v. Johnson et al, 140 Ind. 445 
(1894). 



CEMETERIES. 



125 



grantees, and church authorities, the powers of the 
original grantees being enlarged thereby. It was 
also provided that they might make rules for the 
selection of their successors; and in pursuance 
thereof they passed a by-law authorizing the board 
of trustees of the church to fill all vacancies that 
might occur in the cemetery board, which was done, 
and there was acquiescence on the part of the church 
authorities for more than fifty years. A suit was 
brought by the church against the cemetery trustees 
to quiet the title to the cemetery, to restrain them 
from interfering therewith, and for the appointment 
of new trustees, and to compel an accounting to 
them. The court held that the suit would not lie; 
although in a proper action, alleging their trustee- 
ship, the defendants might be required to give an 
account of their proceedings. 

National Cemeteries. — These are cemeteries created 
and existing by acts of Congress; such as the Gettys- 
burg battlefield, cemeteries connected with soldiers' 
homes, military posts, etc. 

state Cemeteries. — California and some other 
States have burying grounds existing by statute and 
controlled by the State, some of which are con- 
nected with State institutions. 

Public Cemeteries. — Public cemeteries are those 
burying grounds which are under the sole control 
of towns and cities. They may be established by 
dedication, gift, purchase, or condemning of land 
therefor. Whichever way or manner it comes, the 
city or town gets the title thereto. A public ceme- 
tery is proved to be such by the use and occupa- 
tion of the ground for that purpose. If it has once 



126 



MORTUARY LAW. 



acquired that character, it does not lose it by mere 
disuse. It is not necessary to show that it was 
extensively used by many persons and families, 
but that burials have been made by others than the 
owners of the soil, and as of right. The jury can 
consider the number of the graves, the inscriptions, 
and the circumstances generally, in determining the 
question. 1 In the case of Commonwealth v. Viall, 2 
the cemetery was an ancient neighborhood burial 
ground, originally private, but by the owners grad- 
ually permitting the neighbors to be buried there it 
was made public. It was finally taken by the town 
as a public cemetery, and the court held that it was 
such. 

Where land for a cemetery was originally granted 
to a parish, and subsequently the parish was incor- 
porated into a town, the title to the cemetery passes 
to the town. It then remains the property of the 
town until, by the creation of a new parish in the 
town, it becomes separated into two distinct cor 
porations, having diverse and independent powers. 
The cemetery then reverts to the parish, unless in the 
mean time it had been appropriated, as it could be, 
to the use of the town in its municipal capacity, by 
a vote or other positive act of the town when there 
was no parish. 3 

Although township trustees have bought land for a 
cemetery, they still have a discretion as to its use, 
and they cannot be compelled to put it to that use, 

1 Commonwealth v. Vial!, 2 Allen (Mass.) 512 (1861); Com- 
monwealth v. Wellington, 7 Allen (Mass.) 299 (1863). 

2 Commonwealth v. Viall, 2 Allen (Mass.) 512 (1861). 

3 Lakin v. Ames et al., 10 Cush. (Mass.) 198 (1852). 



CEMETERIES. 



127 



if they find it unsuitable or inconvenient, before 
interments are made therein. 1 

In the case of Fay et al. v. Inhabitants of Mil- 
ford, 2 a cemetery belonging to a town became un- 
suitable, and a lot of land was bought and opened as 
a new one. The town voted to give " in exchange 
lots therein free of expense to those holding lots in 
the old " one, and adopted by-laws which constituted 
the selectmen a board of trustees to take charge of the 
new ground, authorizing them to sell lots, and pro- 
viding that " all money received by the trustees for 
the lots in this cemetery, and the avails of all lots 
received in exchange for said lots, shall constitute 
a fund for the purpose of defraying the expenses 
of repairing and improving the avenues, walks, and 
public grounds of the cemetery." Deeds were given 
subject to these by-laws, " and to any by-laws, rules, 
or regulations which said town may hereafter adopt. " 
Provision was also made for the removal of the 
dead. A portion of the old burial ground had been 
divided into lots, many of which had been sold or 
otherwise set apart to inhabitants of the town. 
Some portions of the old cemetery were appropri- 
ated to other purposes, and others sold, lots being 
exchanged as above. The court decided that there 
was nothing to indicate a contract with any of the 
lot owners that the "avails" should be applied to 
the use and improvement of the cemetery, or that 
the fund should be set apart as a trust fund. 

Free Cemeteries. — Free burying grounds are those 
where lots are not sold, and where one may bury his 

1 Christy v. Whitmore et al, 67 Iowa 60 (1885). 

2 Fay et al. v. Inhabitants of Milford, 124 Mass. 79 (1878). 



128 



MORTUARY LAW. 



dead where he will, so long as he docs not encroach 
upon rights already gained by others. It would be 
a trespass for one to fence into his lot a part of 
another person's lot in which interments had been 
made; or to obstruct a roadway necessary for its 
use. If persons, after having taken a lot, move 
away before they have had occasion to make inter- 
ments therein, another may take it ; but if a person 
has staked out a lot and entered into possession of 
it, and not abandoned it, he thereby obtains such an 
interest and possession as will enable him to defend 
it against an appropriation by another. 1 

Where the members of a church bought land, and 
dedicated it as a free burying ground under the con- 
trol of the discipline of the church, and the mem- 
bers of a family were buried in one end of a large 
lot, the widow of one of the persons buried in the 
lot cannot be prevented from being interred by his 
side, she being a member of the church. In such a 
cemetery the first occupant cannot be crowded out, 
and if there is room his wife can be placed by his 
side. 2 

Cemetery Associations. — The civilization of the 
age demands that the resting places of our dead 
shall be made attractive and beautiful, and for this 
end legislatures generally have power to incorporate 
persons into associations. 3 Many ancient burial 
places have been much neglected, and left without 

1 Pierce v. Spafford, 53 Vfc. 394 (1881). 

2 Antrim et al., tr's, v. Malsbury et al., 43 N. J. Eq. 288 
(1887). 

3 Town of Lake View v. Rose Hill Cemetery Co., 70 111. 191 
(1873). 



CEMETERIES. 



129 



the care appropriate to them. Private associations 
find it for their interest to employ skill, not only in 
the laying out of their grounds, but in the perma- 
nent care of them, and this produces places delight- 
ful to the natural sentiments of the living. 1 

Private cemetery corporations cannot as a rule 
obtain land for cemetery purposes under the power 
of eminent domain. It must be purchased, and the 
title obtained by deed in the ordinary manner. See 
Chapter XVII., entitled Acquirement of Cemetery 
Lands, for the different opinions concerning the 
taking of lands by cemetery corporations under the 
right of eminent domain. 

There is nothing in the nature or objects of a 
cemetery association which necessarily impresses 
upon it a trust character. Where the charter 
provides that the association, out of the proceeds 
of the sales of lots, shall " keep the grounds in re- 
pair and in good order," it is not charged with the 
care and repair of lots sold to individuals for burial 
purposes, and the surplus revenue belongs to its 
members. 2 Neither have lot owners the right to 
inspect the books of the association. 3 They are not 
members of the association unless elected under the 
charter, when it provides that a certain number of 
persons shall constitute it, and they are to be elected 
by the association. 4 

1 Commonwealth v. Viall, 2 Allen (Mass.) 512 (1861). 

2 Bourland et al. v. Springdale Cemetery Association et al., 158 
111. 458 (1895) ; Bourland v. Springdale Cemetery Association, 42 
N. E. Rep. (111.) 86 (1895). 

8 Bourland et al. v. Springdale Cemetery Association et al., 56 
111. App. 298 (1894). 

4 Bourland et al. v. Springdale Cemetery Association et al., 56 

9 



130 



MORTUARY LAW. 



Where the members of the corporation were to be 
the owners of lots, which were to be conveyed to 
them in fee, and to be occupied only as burial 
places, with the use of the walks, etc., subject to 
the rules, etc. of the association, and with a further 
agreement that the proceeds of the sales of lots 
should belong to the corporation, the proceeds go 
to the corporators individually, and not to the cor- 
poration; and if the corporation sell the area not 
already sold and conveyed, on condition that the 
grantee assumes all the debts of the corporation, 
it does not constitute the grantee a trustee of the 
corporation. 1 

In the case of Bennett et al. v. Culver, 2 land was 
conveyed to a cemetery association in consideration 
of ten dollars and an agreement to pay the grantor 
and his heirs and assigns forty dollars for each lot 
of four hundred square feet, and in the same propor- 
tion for a larger or a smaller lot, which the asso- 
ciation should dispose of as a place of burial, and 
three dollars for every grave opened, until all the 
land should be sold for cemetery purposes only, the 
grantor and his heirs and assigns being entitled to 
the grass, wood, and other produce of the soil of all 
parts of the land which might remain unsold until 
all such land should be sold and have interments 
therein, and in case of non-fulfilment, the right to 
all lots in which no interments had been made was 

111. App. 298 (1894) ; Bourland v. Springdale Cemetery Associa- 
tion, 42 N. E. Rep. (111.) 86 (1895). 

1 N. Y. Bay Cemetery Co. v. Buckmaster et al, 49 N. J. Eq. 
439 (1892). 

2 Bennett et al. v Culver, 27 Hun (K Y.) 554 (1882). 



CEMETERIES. 



131 



to revert to the grantor and his heirs and assigns, 
the court held that he and his heirs were entitled 
to possession until all the lots were sold and inter- 
ments actually made therein, and that ejectment 
would lie to recover possession from a purchaser at 
a sale under an execution issued upon a judgment 
recovered against the association. 

A shareholder can petition the court of equity for 
the appointment of a receiver to wind up a ceme- 
tery association, when it has failed to maintain the 
cemetery in proper condition, unlawfully increased 
the stock, misapplied the trust funds, and closed, 
altered, and changed the drives. 1 

Private Cemeteries. — In many places in New 
England it was the early practice to bury one's dead 
upon his own estate, perhaps because the people 
were so scattered that it was too far to convey the 
remains to any central cemetery. When the estate 
was sold, the burial lot was generally excepted from 
the operation of the conveyance, or it was reserved 
to the grantor and his heirs. 2 

However unwise in some respects it may have 
been to bury the dead, or build tombs in which their 
remains were placed on the land of the family, it 
was certainly legal to do so. 3 It is just as lawful to 
do so as it is to plant seed, but no nuisance must be 
caused thereby. 4 

1 Houston Cemetery Co. el ah v. Drew et ai, 36 S. W. Rep. 
(Texas) 802 (1896). 

2 Pierce et ux. v. Proprietors of Swan Point Cemetery et al, 10 
R. I. 227 (1872). 

8 Barnes v. Hathorn, 54 Me. 124 (1866). 

4 Application of St. Bernard Sf St. Lawrence Cemetery Associa- 
tion, 58 Conn. 91 (1889). 



132 



MORTUARY LAW. 



These family tombs or burying places, as they are 
usually called, are in disfavor with the law, because 
the title to lands in America changes owners so fre- 
quently that soon no one is left in the region who is 
sufficiently interested in the burying ground to care 
for and protect it. Large cemeteries from their size 
will be looked after and kept attractive for genera- 
tions after private family lots have been encroached 
upon, destroyed, and forgotten. 

Where a deed reserves to two or more persons the 
right to use a graveyard, one who has been inter- 
fered with, or obstructed in the exercise of his 
right, can maintain an action for damages occa- 
sioned by such interference or obstruction, without 
joining with him others not affected thereby. 1 

Where a deed executed by an attorney in fact 
reserves to his descendants the use of a graveyard 
for burial purposes, such reservation is void, and 
vests no interest in the son of such attorney, he 
being a stranger to the deed. 1 

Where a deed excepts " a small lot reserved for a 
burying ground, two poles square, around the graves 
where William Hodge and his grandchildren are 
now buried," with no further description of the lot 
reserved, the law will fix the boundary of the re- 
served lot, by making the graves which were there 
when the conveyance was made a common centre, 
and extending the lines equally each way until an 
area of two poles square is laid off. 2 

1 Herbert v. Pue, 72 Md. 307 (1890). 

2 Hodge v. Blanton, 38 Tenn. 560 (1858). 



PROHIBITION OF CEMETERIES. 133 



CHAPTER XVI. 

PROHIBITION OF CEMETERIES. 

The establishment or further use of cemeteries 
may be prohibited by State or municipal authority 
upon proper grounds. Statutes of this kind must 
have a general application throughout the State in 
order to be valid. 1 

Prohibition of Establishment of Cemeteries. — A stat- 
utory provision, that no cemetery shall be laid out 
within a certain distance of a dwelling-house, does 
not prohibit the taking of a dwelling-house and the 
land on which it stands, as the design of the statute 
is not to compel people to live near a cemetery, as 
such association might be disagreeable and the mar- 
ket value of their property be diminished thereby. 
If the dwelling-house is thus taken, none of the 
evils that the statute was passed to prevent can 
occur, because by taking the land the destruction 
or removal of the house must follow. 2 Under such 
a statute, the distance is to be measured from the 
house itself, and not from its curtilage. 3 

1 Philadelphia v. Westminster Cemetery Co., 162 Pa. St. 105 
(1894). 

2 Crowell v. Londonderry, 63 N. H. 42 (1884). 

» Wright v. Wallasey Local Board, L. R. 18 Q. B. Div. (Eng.) 
783 (1887). 



134 



MORTUARY LAW. 



On the question whether a municipal government 
has the right to pass an ordinance prohibiting in 
advance the opening of any cemetery in the town 
without permission of certain officials, some of the 
courts hold that it cannot, because cemeteries are 
not nuisances. The South Carolina court holds 
that a city can by ordinance prohibit the establish- 
ment of new burial grounds within the limits of 
the city if such power is within the statute and the 
powers of the city charter, and that such a statute is 
constitutional. 1 

Prohibition of Further Use of Cemeteries. — When a 
legislature has incorporated a cemetery association, 
it cannot subsequently take away the franchise with- 
out cause. The State can regulate interments for 
the prevention of injury to the health of the peo- 
ple residing in the neighborhood of the cemetery, 
whether the cemetery is incorporated or not. They 
can always exercise their police powers. But when 
a particular burial ground was the subject of the 
statute, in the case of Town of Lake View v. Rose 
Hill Cemetery Co., 2 the court was divided on the 
question. The majority held that the legislature 
must find reasons for the exercise of such police 
powers, and that they could not act arbitrarily. 
The minority held that the legislature must be pre- 
sumed to have found proper grounds for its action, 
such as the nearness of Chicago and the rapidity 
of its growth, and that the court had no right to 

1 City Council of Charleston v. Wentworth Street Baptist Church, 
4 Strob. (S. C.) 306 (1850). 

2 Town of Lake View v. Rose Hill Cemetery Co., 70 111. 191 
(1873). 



PROHIBITION OF CEMETERIES. 135 



inquire into the legislature's act when it is a 
police regulation, and relates to the protection of 
the health, comfort, and welfare of the community. 
In this case the act objected to was one fixing the 
boundaries of a cemetery ten years after the incor- 
poration of the cemetery company. 

Boards of health have large discretionary pow- 
ers, but they must not act fraudulently or through 
caprice. 1 



1 Upjohn v. Board of Health et al, 46 Mich. 542 (1881). 



136 



MORTUARY LAW. 



CHAPTER XVII. 

ACQUIREMENT OF CEMETERY LANDS. 

There are at least four ways in which lands for 
cemetery purposes may be acquired : — 1. By Pre- 
scription ; 2. By Dedication ; 3. By Conveyance ; 
and, 4. By Right of Eminent Domain. 

BY PRESCRIPTION. 

An easement of the right of burial may be acquired 
and perfected by prescription ; and such right, once 
gained, cannot be defeated even by the owner of the 
soil, but will pass to the heirs at law of the deceased 
by descent. In the case of Hook, $c. v. Joyce, 1 the 
only child and heir of a person thus buried caused 
tombstones to be placed at the graves of such person 
and her husband and son, who were also buried 
there, the lot to be enclosed and otherwise cared 
for, and was afterwards herself buried there. 

In the case of Zirngibl v. Calument <f C. Canal 
$• Dock Co., 2 possession of a few square feet of land 
by a grave, having a fence around it, in a small 
tract of land used as a general burial ground, had 
been had for twenty -nine years, and the court held 
that it created a title by prescription to the space 

1 Hook, £c. v. Joyce, 94 Ky. 450 (1893). 

2 Zirngibl v. Calument 8f C. Canal 8f Dock Co., 42 N. E. Rep. 
(HI.) 431 (1895). 



ACQUIREMENT OF CEMETERY LANDS. 137 



enclosed by the fence, but not to the forty-acre lot 
in which the burial ground was located. 

The ordinary rule of prescription does not, how- 
ever, run against the easement of a burial lot. 1 

BY DEDICATION. 

Land may be dedicated to the use of a cemetery. 2 
No deed or other writing, nor any particular form or 
ceremony or proceeding, is necessary to pass the title 
to the easement. 3 It may be made by an oral state- 
ment to that effect ; but it need not be made to any 
person legally capable of taking a conveyance other- 
wise than in trust. 4 It may also arise from the 
conduct of the owner, and the acts of those who rely 
thereon, so that while the title remains in the owner 
of the fee he will be estopped to interfere with the 
use which he has occasioned. 5 

Where the owner of land buried his own child 
therein, and subsequently allowed his neighbors to 
use the lot as a burial ground, declaring that he had 
devoted it to such a use, and the subsequent owner 
recognized it as a burial place and did not object 
to its being so used, it is sufficient evidence of the 
dedication of the lot to the public for a cemetery. 6 

1 Hook, Sfc. v. Joyce, 94 Ky. 450 (1893). 

2 Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) 407 (1844). 

3 Davidson v. Reed et al, 111 111. 167 (1884); Hicks et al. v. 
Danford et al., 47 Ind. 223 (1874); Hunter v. Trustees of Sandy 
Hill, 6 Hill (N. Y.) 407 (1844). 

4 Redwood Cemetery Association v. Bandy et al., 93 Ind. 246 
(1883). 

5 Redwood Cemetery Association v. Bandy et al., 93 Ind. 246 
(1883) ; State v. Wilson, 94 N. C. 1015 (1886). 

6 Davidson v. Reed et al., Ill 111. 167 (1884). 



138 



MORTUARY LAW. 



The staking off a lot of land by the owner, with 
the intention of donating it to the use of the neigh- 
borhood for a burial ground, and setting stones at 
the corners, and allowing a neighbor to select a lot 
therein, in which the neighbor buried his wife's 
remains, all of which occurred at or about the same 
time, and subsequently permitting about twenty-five 
other bodies to be buried there, are facts which con- 
clusively prove the dedication. 1 

A dedication also legally takes place where the 
public had used a certain lot of land for burial pur- 
poses with the permission of the occupant only for a 
certain time, and afterward with the consent of the 
new owner of the fee ; and the same effect was had 
upon an additional lot, which was also allowed by 
the owner to be used for that purpose, though in the 
latter instance something was said about paying for 
the land used, but no payment had been made. 2 

The giving of the privilege of burial to neighbors 
promiscuously, although the owner of the soil con- 
tinues to use it as private property, except so as not 
to disturb the graves and their appurtenances, is a 
sufficient dedication at common law. 3 

The following statement of facts also conclusively 
shows the dedication of the premises for burial 
purposes. The original proprietors of Kansas City, 
Missouri, made in 1847 a plan of the lands, divid- 
ing them into lots, and marking one lot, "Donated 
for graveyard." The plan was duly recorded, and 
the other lots were sold according to the plan. 

1 Hagaman v. Dittmar, 24 Kansas 42 (1880). 

2 Hayes v. Hauke et al., 45 Kansas 466 (1891). 

8 Commonwealth v. Vittil, 2 Allen (Mass.) 512 (1861). 



ACQUIREMENT OF CEMETERY LANDS. 139 



Prior to the making of the plan, a very few burials 
had been made on a high knoll or ridge which lay 
near the northwestern corner of the square, extend- 
ing the street on the north side, which was not 
distinguishable from the ground in controversy by 
any visible boundary at that time. Thenceforth the 
inhabitants of the town and vicinity continued to 
bury their dead in this land on the western half, 
which was its highest part, making use of the un- 
improved streets on the north and west for the same 
purpose. 1 

Where the owner of a certain lot of land stated to 
several people living in the vicinity that the ground 
might be used for a burial place, and he suffered it 
to be fenced and exclusively used for such a purpose 
for a great number of years, lots being appropriated, 
roads made in it (the expense being paid by sub- 
scription), etc., it is a sufficient dedication. 2 

Land may be dedicated to the use of only a limited 
portion of the public, and to a corporation as well as 
to a person. 3 

A special and express trust created by the appro- 
priation of a lot of ground by a cemetery associa- 
tion, for the purpose of the exclusive burial of the 
dead of a certain church, will be upheld, and the 
execution of it strictly enforced in a court of equity, 
upon the application of any member of the church, 
where there has been an abuse or perversion of the 
trust. 4 

1 Campbell v. City of Kansas, 102 Mo. 326 (1890). 

2 Pierce v. Spafford, 53 Vt. 394 (1881). 

8 Mowry v. City of Providence, 10 R. I. 52 (1871). 

4 Hullman et al. v. Honcamp el al., 5 Ohio St. 237 (1855). 



140 



MORTUARY LAW. 



Nature of the Right parted with. — Dedication has 
respect to the possession and not to the permanent 
title, and the act is only one of estoppel. 1 The 
public takes an exclusive right for the purposes of 
a cemetery only, and such right continues until the 
place loses its identity as a burial ground. 2 

Time as an Ingredient of Dedication. — Lapse of 
time is not an essential ingredient, where the dedi- 
cation can be established by acts on the part of the 
owner and the public, unequivocal in their charac- 
ter, though occurring on a single day. But when 
such evidence is lacking, long continued and unin- 
terrupted use of land by the public, as for twenty 
years, with the knowledge and acquiescence of the 
owner, furnishes strong evidence of a dedication. 3 

Effect of Dedication. — All prior rights of parties 
to land except that of reversion, upon dedication of 
it to burial purposes, are waived and subornated to 
the public use for such purposes. 4 

After such dedication, the owner of the land 
has no right to remove the bodies, or to deface or 
pull down the gravestones or monuments erected to 
perpetuate their memory. 5 

Conveyance of the Right of the Public. — Where 
land has been dedicated to the public for cemetery 
uses, and has been used by the citizens in the vicin- 

1 Boyce et al. v. Kalbaugh et al., 47 Md. 334 (1877); Hunter 
v. Trustees of Sandy Hill, 6 Hill (N. Y.) 407 (1844). 

2 Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) 407 (1844). 
8 Boyce et al. v. Kalbaugh et al, 47 Md. 334 (1877) ; Hunter 

v. Trustees of Sandy Hill, 6 Hill (1ST. Y.) 407 (1844); Mowry v. 
City of Providence, 10 R. I. 52 (1871). 

4 Boyce et al. v. Kalbaugh et al., 47 Md. 334 (1877). 

6 State v. Wilson, 94 N. C. 1015 (1886). 



ACQUIREMENT OF CEMETERY LANDS. 141 

ity of the premises, and they have cleared and 
fenced it, and for years subsequently buried their 
dead there, their incorporation years later gives no 
right to the corporation to petition for quietus of 
title against the widow of the original owner. The 
court held that the natural persons could not convey 
such a right, and that this was not the case of one 
suing in behalf of many. 1 

BY CONVEYANCE. 

Land may be obtained for a cemetery by purchase, 
the title being passed by deed as in ordinary trans- 
fers of real estate. Where a deed of land sold to 
a cemetery association declares that the premises 
are conveyed for cemetery purposes, they must be so 
used, though a consideration was paid therefor. 2 
However, if a deed is made of land " for a place of 
burial and for other purposes," it passes a title in 
fee simple, and there is no reversion. 3 

A grant of land to a church society for the use and 
purpose of a church and churchyard and a burying 
place is a grant for that special purpose, and when 
the purpose fails the land reverts to the original 
owner or his heirs. When such society dissolves 
and the church is abandoned, the burying ground 
may still be used as a place of burial by those who 
have relatives interred there. 4 

1 Redwood Cemetery Association v. Bandy et al., 93 Ind. 246 
(1883). 

2 Reed et al. v. Stouffer et al, 56 Md. 236 (1881). 

8 M. P. Church of Cincinnati v. Laws et al, 7 Ohio C. C. 211 
(1893). 

* Gumbert's Appeal, 110 Pa. St. 496 (1885). 



142 



MORTUARY LAW. 



A deed to the trustees of a church is the same as 
if made to the church in its corporate name. 1 

BY RIGHT OP EMINENT DOMAIN. 

The law of eminent domain is this, that private 
land may be taken for the public use, 2 a reason- 
able compensation being made therefor. When 
an application is made to a court for license to take 
and condemn land for cemeteries two questions 
arise : first, Is the purpose a public one ? and, 
second, Is it necessary to take the land ? The law 
is clear that a cemetery reasonably near a city or 
town is a necessity. The doubt arises when there 
are several cemeteries in the region already. 

The Purpose of the Taking. — First, then, Is the 
cemetery for which the land is asked to be con- 
demned and taken a private one, or is it for the use 
of the public ? It is settled that land may be con- 
demned for the purpose of establishing or enlarg- 
ing a cemetery of a city or town, which is strictly 
the only public cemetery. The cemetery must be 
one in which the public in general have a right of 
interment. 3 

There are many cemeteries which are strictly 
private, in which the public have not, and cannot 
acquire, the right of interment. It is clear that 
land cannot be taken by right of eminent domain for 

1 Brendle et al. v. German Reformed Congregation et al., 33 
Pa. St. 415 (1859). 

2 F. R. B. Cemetery Association v. Redd, 33 W. Va. 262 
(1889). 

8 Farneman et al. v. Mount Pleasant Cemetery Association, 135 
Ind. 344 (1893). 



ACQUIREMENT OE CEMETERY LANDS. 143 



such cemeteries. 1 The doubt arises when the burial 
grounds of cemetery associations are considered. 
These are in a certain sense public, and in another 
sense private. The supreme court of Connecticut 
argues in favor of cemetery corporations, that " The 
safety of the living requires the burial of the dead 
in proper time and place ; and inasmuch as it may 
so happen that no individual may be willing to sell 
land for such use, of necessity there must remain to 
the public the right to acquire and use it under such 
regulations as a proper respect for the memory of 
the dead and the feelings of survivors demands. In 
order to secure for burial places during a period 
extending indefinitely into the future that degree of 
care universally demanded, the legislature permits 
associations to exist with power to discharge in 
behalf and for the benefit of the public the duty of 
providing, maintaining, and protecting them. The 
use of land for this purpose does not cease to be 
a public use, because they require varying sums for 
rights to bury in different localities ; not even if the 
cost of the right is in practical exclusion of some. 
Corporations take land by right of domain primarily 
for the benefit of the public, incidentally for the ben- 
efit of themselves ; ... it remains a public use as 
long as all persons have the same measure of right 
for the same measure of money. " 2 The New York 
court differs from the court of Connecticut in its 
statement of the law. In the case of the Deans- 

1 Evergreen Cemetery Association of New Haven v. Beecher et 
al, 53 Conn. 551 (1886). 

2 Evergreen Cemetery Association v. City of New Haven, 43 
Conn. 234 (1875); Evergreen Cemetery Association of New Haven 
v. Beecher et al., 53 Conn. 551 (1886). 



144 



MORTUARY LAW. 



ville Cemetery Association, the supreme court of New 
York 1 held that land taken by a private incorpo- 
rated cemetery association was for a public use suffi- 
cient for this purpose, as provision for the proper 
and decent burial of the dead is a public necessity 
and duty. The court of appeals, 2 to which the case 
was carried, reversed the decision of the supreme 
court, and held that the "use of lands for the pur- 
poses of rural cemetery associations is private and 
not public. The right of the trustees is to divide 
the ground into lots, and sell them to individuals. 
There is no right on the part of the public to buy 
lots or bury their dead there. There is nothing in 
the cemetery in which the public, as such, have any 
interest. The fact that the burial of the dead is 
a public benefit, as some argue, does not make the 
cemetery public." 

Statutes regarding the taking of land under this 
right of eminent domain must be strictly construed, 
as ownership and enjoyment of private property are 
almost sacred in the eye of the law, and the owner's 
right is subject only to that of the public. This 
great power is jealously guarded, and the use must 
be plainly a public one. It cannot be inferred that 
the use is public merely from the fact that a corpo- 
ration asks for the land. 3 

The Necessity for the Taking. — The next question 
is whether the taking of land for cemetery purposes 
in each particular case is necessary. This need 
must be shown actually to exist, and not be simply 

1 DeansviUe Cemetery Association, 5 Hun (N. Y.) 482 (1875). 

2 DeansviUe Cemetery Association, 66 N. Y. 568 (1876). 

3 F. R. B. Cemetery Association v. Redd, 33 W. Va. 262 (1889). 



ACQUIREMENT OF CEMETERY LANDS. 145 



a fanciful one. 1 The most difficult case to decide, 
as to the necessity of the taking of land for ceme- 
tery purposes, in those States where land is allowed 
to be taken for such uses under the right of emi- 
nent domain by other than cemeteries belonging to 
municipalities, is that of a religious organization 
which has outgrown its present limits and seeks to 
add to it or to open a new cemetery when exten- 
sive and beautiful public cemeteries have just been 
opened, to which all have a right. From a very 
early period in the history of the Christian church 
burying grounds were instituted and maintained by 
the church; and when the divisions in the faith and 
church took place the various denominations provided 
cemeteries for the interment of the people of their 
respective persuasions, and, with the exception of the 
Scotch Presbyterians and the New England Puritans, 
consecrated them with religious services. It is par- 
ticularly true in New England, that in the early days 
the ecclesiastical society and the town were one ; 
and when the towns grew, and of necessity a division 
into two or more parishes occurred, the same reli- 
gious body that built the new meeting-house and set- 
tled the minister provided also the burying ground. 
They were all of them ecclesiastical burying places, 
though all in the parish probably had a right of 
interment therein. In the case of the Application 
of St. Bernard <f St. Lawrence Cemetery Associa- 
tion, 2 the supreme court of Connecticut found that a 

1 F. R. B. Cemetery Association v. Redd, 33 W. Va. 262 
(1889). 

2 Application of St. Bernard 8r St. Lawrence Cemetery Associa- 
tion, 5S Conn. 91 (1889). 

10 



146 



MORTUARY LAW. 



Roman Catholic cemetery was of public necessity 
and convenience, the people of that faith constitut- 
ing about one-third of the population of the town, 
and the only other Catholic cemetery in the town 
being full. 

Who Decides these Questions? — Another question 
which arises under the subject of eminent domain 
is, Who is to decide whether the cemetery purposes 
are private or public, and whether the taking of the 
land is necessary? The supreme court 1 of New 
York, in the case of the Deansville Cemetery Asso- 
ciation, held that the legislature, which provides for 
the taking of lands for cemetery purposes by cemetery 
associations by right of eminent domain, is the proper 
body to determine it; but the court of appeals, 2 to 
which the case was carried, held that it was a judi- 
cial question, and that the action of the legislature 
was not conclusive evidence that the use was a 
public one. 

Application. — An application to court to take land 
for cemetery purposes under the right of eminent 
domain must show that the land is needed for public 
use, and that it will, when condemned and taken, be 
devoted to such use. 3 

Damages. — The cash market value of the land 
taken for cemetery purposes by the right of eminent 
domain, as found by a jury, must be paid to the 
owner. 

1 Deansville Cemetery Association, 5 Hun (N. Y.) 482 (1875). 

2 Deansville Cemetery Association, 66 N. Y. 568 (1876). 

8 Evergreen Cemetery Association of New Haven v. Beecher et 
ah, 53 Conn. 551 (1886) ; F. R. B. Cemetery Association v. Redd, 
33 W. Va. 262 (1889). 



ACQUIREMENT OF CEMETERY LANDS. 147 



KEVEESION. 

Where land has been dedicated to the use of the 
public as a burying ground, and the cemetery is 
subsequently legally abolished, the title to the land 
reverts to the original owner and his heirs and 
assigns; but not until then. 1 The public cannot use 
it for any other purpose under and by virtue of the 
dedication or the use made of it by the public. 2 

Where land is conveyed for a cemetery upon con- 
dition, the condition will be supported, and the land 
will revert upon breach thereof, although interments 
have been made therein. In the case of Dolan et al. 
v. Mayor, $c. of City of Baltimore,* a deed of a lot 
of land was made to the trustees of a certain church 
organization, in trust, to erect a Roman Catholic 
church and lay out a place on the same for the 
burial of the Roman Catholics of the city, and on 
the condition that if the trustees did not do this the 
lot should revert to the grantor and the deed be 
void. The trustees built the church elsewhere, but 
used the land exclusively for burial purposes. The 
court held that the condition was good and the deed 
void, and that the title to the land reverted to the 
grantor. 

When a religious society which has received a 
conveyance of land for a churchyard, and has used 
it as such, dissolves, and the church has been aban- 

1 Bealty et al. v. Trustees of German Lutheran Church oj 
Georgetown, 2 Peters (U. S.) 566 (1829). 

2 Campbell v. City of Kansas, 102 Mo. 326 (1890). 

3 Dolan et al. v. Mayor, fyc. of City of Baltimore, 4 Gill (Md.) 
394 (1846). 



148 



MORTUARY LAW. 



doned, the place may still be used as a burial 
ground by those who have relatives buried there, 
and the reversion will thus be prevented. Such 
parties have sufficient interest in the trust to clothe 
them with a right to preserve the cemetery. Hence, 
upon their petition, the court will set aside a sale 
of such property, made under an order of court, to 
an incorporated society, formed for the purpose of 
continuing the use of the ground as a burial place, 
especially when the interest of the parties who 
petitioned for such sale did not appear upon the 
record. 1 

American courts have very generally ignored or 
denied the existence of the doctrine of cy pres as 
bearing upon the donation and dedication of land 
for particular charitable uses, such as graveyards. 2 

When cemetery lands revert to the former owner, 
the relatives of those buried there have the right 
to remove the remains and monuments, and other 
fixtures that they and their ancestors have placed 
there. 2 

1 Gumbert's Appeal, 110 Pa. St. 496 (1885). 

2 Campbell v. City of Kansas, 102 Mo. 326 (1890). 



CEMETERIES AS NUISANCES. 



149 



CHAPTER XVIII. 

CEMETERIES AS NUISANCES. 

A cemetery is not per se a nuisance. 1 It is neces- 
sary that the bodies of the dead be disposed of in 
some way; and burial in the earth, which is sug- 
gested by man's origin and destiny, is the common 
method. Their resting place is respected univer- 
sally, and burying grounds are not only regarded 
as necessary, but are established, maintained, and 
stringently protected by law. 2 Not only are they 
not nuisances, but many modern cemeteries near 
cities are so located, and laid out with drives and 
walks, so ornamented with trees, shrubs, and flowers, 
and by monumental structures of elaborate design 
and statues and other exhibitions of sculpturesque 
skill, as to be beautiful and delightful even as a 
public park or landscape garden, being free from 

1 Kingsbury v. Flowers, 65 Ala. 479 (1880); Town of Lake 
View v. Rose Hill Cemetery Co., 70 111. 191 (1873) ; Begem et al. v. 
City of Anderson, 28 Ind. 79 (1867) ; Musgrove v. Catholic Church 
of St. Louis, 10 La. Ann. 431 (1855) ; City of New Orleans v. 
Wardens of the Church of St. Louis, 11 La. Ann. 244 (1856); 
Barnes v. Hathorn, 54 Me. 124 (1866); Monk v. Packard et al., 
71 Me. 309 (1880) ; Ellison v. Commissioners of Washington, 5 
Jones' Eq. (N. C) 57 (1859); Dunn v. City of Austin, 77 Texas 
139 (1890). 

2 Begein et al. v. City of Anderson, 28 Ind. 79 (1867) ; Ellison 
v. Commissioners of Washington, 5 Jones' Eq. (N. C.) 57 (1859). 



150 



MORTUARY LAW. 



every legitimate objection. 1 They attract and hold 
the attention of lovers of the beautiful in nature 
and art. 

A properly conducted cemetery is not even dis- 
turbing to the senses of ordinary people. Persons 
of morbid or excitable imagination may shrink from 
the constant view of these fixed memorials of death 
and decay, which suggest so many unpleasant reflec- 
tions, and be thereby mentally disquieted. Others 
are morally benefited by thoughts thus suggested. 
Superstitious fears may also exaggerate the impor- 
tance of their presence. All sorts of horrible and 
ghoulish things may be imagined, and sickness fol- 
low as the result; but the human remains as they 
lie there properly interred cannot legally offend the 
senses. The stones alone are seen, and have the 
same effect that they would have if no remains lay 
beneath them. 2 

Cemeteries must not be far from cities and towns, 
and must generally be near private estates; and 
although they may depreciate their market value, 
they are not therefore legal nuisances. 3 Neither 
are unsightly or ill formed constructions nuisances 
because they offend the eye or taste ; nor are vexa- 
tious and irritating acts. 4 

1 Town of Lake View v. Letz et al, 44 111. 81 (1867) ; Town 
of Lake View v. Rose Hill Cemetery Co., 70 111. 191 (1873); Monk 
v. Packard et al, 71 Me. 309 (1880). 

2 Barnes v. Hathorn, 54 Me. 124 (1866); Monk v. Packard et 
al., 71 Me. 309 (1880); Ellison v. Commissioners of Washington, 
5 Jones' Eq. (N. C.) 57 (1859). 

3 City of New Orleans v. Wardens of the Church of St. Lonis, 
11 La. Ann. 244 (1856) ; Barnes v. Hathorn, 54 Me. 124 (1866). 

4 Barnes v. Hathorn, 54 Me. 124 (1866). 



CEMETERIES AS NUISANCES. 



151 



At common law a man can bury his dead in his 
own land just as legally as he can sow seed or plant 
trees there ; and what he can do himself he may per- 
mit others to do. 1 He has the right to improve and 
control his estate, and to make such erections as his 
judgment, taste, or interest may suggest, without the 
dictation or interference of his neighbors. But he 
must be reasonable in the use of his property ; the 
health, comfort, and reasonable enjoyment of like 
rights of his neighbors must be deferred to. 2 The 
owner of every burial lot is bound to know at his 
peril that it may become offensive for various rea- 
sons, and, if it does, he must yield to laws for the 
suppression of nuisances. 3 There is nothing in 
nature that may not become mischievous; and one 
of the readiest instruments of harm is an improperly 
conducted cemetery. 4 

An important factor in the consideration of ceme- 
teries as nuisances is the location of the burial 
ground. It may be situated in a place so remote 
from any settlement that what would be very obnox- 
ious and decidedly harmful to health in other lo- 
calities would be unobjectionable there. A burying 
ground within the limits of a city, where the popu- 
lation is dense, may readily become a nuisance. 5 

1 Application of St. Bernard 8f St. Lawrence Cemetery Associa- 
tion, 58 Conn. 91 (1889). 

2 Barnes v. Hathorn, 54 Me. 124 (1866). 

8 Brick Presbyterian Church v. Mayor, Sfc. of City of New York, 
5 Cowen (N. Y.) 538 (1826) ; Went v. M. P. Church of Williams- 
burgh et al., 80 Hun (N. Y.) 266 (1894). 

4 Town of Lake View v. Rose Hill Cemetery Co., 70 HI. 191 
(1873); Dunn v. City of Austin, 77 Texas 139 (1890). 

5 Town of Lake View v. Letz el al., 44 111. 81 (1867) ; Begein 



152 



MORTUARY LAW. 



If the atmosphere is corrupted by bad odors 
emitted from the decaying bodies, either in tombs 
or graves, and health is or will be endangered 
thereby, the cemetery or tomb may be enjoined by a 
court of equity. 1 But it will not be prohibited for 
idle and unfounded fears of ill effects from the use 
thereof. 2 In the case of Barnes v. Hathorn, 2 a man 
in Maine built upon his land a tomb forty-four feet 
from the plaintiff's house. In the tomb, nine years 
before the time the action arose, nine bodies had 
been placed, and from them such an effluvia was 
emitted that the house of the plaintiff was rendered 
unwholesome. The bodies were removed upon the 
advice of a physician. A few days before this suit 
was brought, another body was deposited in the 
tomb, and, without waiting for any obnoxious re- 
sults, the plaintiff at once petitioned the court for an 
injunction against the same, alleging that his life 
was uncomfortable, etc., by reason of his apprehen- 
sion of danger therefrom. The majority of the 
court held that the apprehension of danger was well 
founded, and the prayer of the petition was granted. 
J ustice Dickerson however dissented from the opinion 
of the majority, holding that in an unoccupied state 
the tomb could not have caused such substantial 
discomfort as the law imputes to a nuisance. The 
plaintiff's tastes may have been offended, and he 
might have been really apprehensive of danger, but 

et al. v. City of Anderson, 28 Tnd. 79 (1867) ; Barnes v. Hathorn, 
54 Me. 124 (1866); Dunn v. City of Austin, 77 Texas 139 (1890). 

1 Monk v. Packard et al, 71 Me. 309 (1880) ; Clark v. Law- 
rence, tr., 6 Jones' Eq. (X. C.) 83 (1860). 

2 Barnes v. Hathorn, 54 Me. 124 (1866). 



CEMETERIES AS NUISANCES. 



153 



the fact that the body remained in the tomb only 
from October to December does not constitute it a 
nuisance, no offensive vapor having arisen therefrom. 
There was no evidence to indicate that the deposit 
was otherwise than temporary, — for the winter 
only. The justice said that this position of the 
court would make every receiving tomb a nuisance, 
as they are built out of the ground, etc. 

A cemetery may be a nuisance because it contami- 
nates wells and springs of water. If it does, equity 
will grant relief by injunction. 1 But the estab- 
lishment of a cemetery which may result in the 
pollution of subterranean streams of water is not a 
nuisance, and cannot be enjoined. 2 The law does 
not protect fancies merely, but will prevent real 
wrong and injury combined. 3 

A cemetery becomes a public nuisance when it 
affects the public generally, and a private nuisance 
when individuals only are affected. If an individual 
sustains special damage to himself beyond that which 
is common to the public by reason of a public nui- 
sance, he may maintain an action for such special 
injury. 4 

When a cemetery or tomb becomes a private nui- 
sance, if it is on the highway it is a public nuisance 
also, as every traveller on that way suffers the effects 
of it. 5 

In these cases the plaintiff, if he would succeed 

1 Clark v. Lawrence, tr., 6 Jones' Eq. (N". C.) 83 (1860). 

2 City of Greencastle v. Hazelett, 23 Ind. 186 (1864). 
« Monk v. Packard et al, 71 Me. 309 (1880). 

4 Barnes v. Hathorn, 54 Me. 124 (1866). 

5 Monk v. Packard et al., 71 Me. 309 (1880). 



154 



MORTUARY LAW. 



in enjoining a cemetery, must not be himself a con- 
tributor to his discomfort and to the injury to his 
health. He ought not to build a dwelling-house by 
the cemetery, and then ask the court to enjoin it. 1 

Practice. — Where a private burying ground, is 
owned by two persons, they should be joined as re- 
spondents in a bill for an injunction against further 
interments therein ; and if one of them dies before 
the bill is filed, the widow of the deceased, having 
a right of sepulture therein, her second husband, 
and the heirs, should be joined with the survivor, but 
not the personal representative. 2 

In such a bill facts should be stated, and not the 
general allegation that injury to the health of the 
family of the complainant, or other injurious conse- 
quences, will probably be caused by the pollution of 
the air and water. 2 

1 Ellison v. Commissioners of Washington, 5 Jones' Eq. (N. C.) 
57 (1859). 

2 Kingsbury v. Flowers, 65 Ala. 479 (1880). 



CEMETERIES AS CHARITIES. 



155 



CHAPTER XIX. 

CEMETERIES AS CHARITIES. 

A cemetery corporation is not a public charity at 
common law, although it voluntarily uses its funds 
for objects akin to the purposes of its organization. 1 
Neither are the lots, 2 graves, 3 tombs, 4 vaults, 5 grave- 
stones, 6 nor monuments 7 in cemeteries charitable 

1 Donnelly v. Boston Catholic Cemetery Association, 146 Mass. 
163 (1888). 

2 Bates, adm'r, v. Bates, 134 Mass. 110 (1883); Bartlett et al, 
ex'rs et tr's, petitioners, 163 Mass. 509 (1895) ; Moore's ex'r v. 
Moore et al., 50 N. J. Eq. 554 (1892). 

» Fowler v. Fowler, 33 Beav. (Eng.) 616 (1864); Fiske v. 
Attorney General, L. R. 4 Eq. (Eng.) 521 (1867); In re Birkett, 
L. R. 9 Ch. Div. (Eng.) 576 (1878) ; Detiviller v. Hartman, 37 
N. J. Eq. 349 (1883) ; Hartson, ex'r, v. Eldenetal, 50 N. J. Eq. 
522 (] 892) ; Moore's ex'r v. Moore et al, 50 N. J. Eq. 554 (1892). 

4 Doe v. Pitcher et al., 6 Taun. (Eng.) 359 (1815) ; Lloyd v. 
Lloyd, 2 Simons' Ch., K S. (Eng.) 255 (1852); Richard v. Rob- 
son, 31 Beav. (Eng.) 244 (1862); In re Williams, L. R. 5 Ch. Div. 
(Eng.) 735 (1877); Bates, adm'r, v. Bates, 134 Mass. 110 (1883). 

6 Doe v. Pitcher et al, 6 Taun. (Eng.) 359 (1815) ; Hoare v. 
Osborne, L. R. 1 Eq. (Eng.) 585 (1866) ; Vaughnv. Thomas, L. R. 
33 Ch. Div. (Eng.) 187 (1886). 

6 Hunter v. Bullock, L. R. 14 Eq. (Eng.) 45(1872); Dawson 
v. Small, L. R. 18 Eq. (Eng.) 114 (1874); In re Birkett, L. R. 9 
Ch. Div. (Eng.) 576 (1878). 

7 Hoare v. Osborne, L. R. 1 Eq. (Eng.) 585 (1866) ; Bartlett 
et al, ex'rs et tr's, petitioners, 163 Mass. 509 (1895) ; Detwiller v. 
Hartman, 37 K J. Eq. 349 (1883) ; Hartson, ex'r, v. Elden et al> 
50 N. J. Eq. 522 (1892). 



156 



MORTUARY LAW. 



objects. And as none of these are public charities 
no fund can be established in perpetuam to care for 
or repair and maintain them. Such funds and 
attempts to form them are void. 1 In the case of 
Doe v. Pitcher et al., 2 land was granted in trust 
to repair a vault and tomb standing on the land 
perpetually, to rebuild them, if necessary, and to 
permit them to be used as family vaults for the 
donor and his family, and the court held that the 
grant was void as it would otherwise create a per- 
petuity. In the case of Richard v. Robson, s the 
interest of the fund was to be applied to keeping up 
the tombs of the testator and his family; and, in 
Fowler v. Fowler, 4 to the maintenance of the testa- 
tor's family graves. The case of Hoare v. Osborne 5 
was one where six hundred pounds was bequeathed 
to trustees, the income to be paid to the minister and 
church wardens of the parish, to be applied by them 

1 Doe v. Pitcher et ah, 6 Taun. (Eng.) 359 (1815) ; Lloyd v. 
Lloyd, 2 Simons' Ch., N. S. (Eng.) 255 (1852) ; Packard v. Rob- 
son, 31 Beav. (Eng.) 244 (1862) ; Fowler v. Fowler, 33 Beav. 
(Eng.) 616 (1864) ; Hoare v. Osborne, L. R. 1 Eq. (Eng.) 585 
(1866); Fiske v. Attorney General, L. R. 4 Eq. (Eng.) 521 (1867); 
Hunter v. Bullock, L. R. 14 Eq. (Eng.) 45 (1872); Dawson v. 
Small, L. R. 18 Eq. (Eng.) 114 (1874) ; In re Williams, L. R. 5 Ch. 
Div. (Eng.) 735 (1877); In re Birkett, L. R. 9 Ch. Div. (Eng.) 
576 (1878) ; Bates, adm'r, v. Bates, 134 Mass. 110 (1883) ; Bart- 
lett et ah, ex'rs et tr's, petitioners, 163 Mass. 509 (1895) ; Detwiller 
v. Hartman, 37 N. J. Eq. 349 (1883) ; Hartson, exW, v. Elden 
et ah, 50 N. J. Eq. 522 (1892); Moore's exW v. Moore et ah, 50 
N. J. Eq. 554 (1892). 

2 Doe v. Pitcher et ah, 6 Taun. (Eng.) 359 (1815). 
8 Rickardv. Robson, 31 Beav. (Eng.) 244 (1862). 

4 Fowler v. Fowler, 33 Beav. (Eng.) 616 (1864). 
6 Hoare v. Osborne, L. R. 1 Eq. (Eng.) 585 (1866). 



CEMETERIES AS CHARITIES. 



157 



to keeping in " good repair, order, and condition " 
forever the monument of the testatrix' mother in 
the church, the vault in the churchyard in which 
she was interred, and an ornamental window which 
the testatrix directed her trustees to place in the 
church in memory of her mother, etc. The gift for 
the repair of the vault was held invalid, it being in 
the churchyard ; but the rest was held good, on the 
ground that as they were within the church they 
were repairs of the same, and therefore valid. In 
the case of Dawson v. Small, 1 six hundred pounds 
were placed in trust to be invested and the income 
applied to keeping in good repair all the tombstones 
and headstones of the testator's relatives and him- 
self in a certain churchyard, in which he was to be 
buried. 

The objection to these bequests, as has already 
been said, lies in their creation of funds that are to 
continue without limitation. And the same objec- 
tion arises when a testator gives his executor permis- 
sive power to use certain funds for such purposes. 2 

The gift or appropriation of money by a testator 
for the erection of a monument, etc., does not come 
under that ban, and is valid. 3 In the case of Gil- 
mer's legatees v. Gilmer's ex y rs, s a bequest for the 
erection of monuments to the memory "of Gen. 
Stonewall Jackson, of Virginia, and Col's. Thomas 
Cobb and Barstow, of Georgia," was held to be 
good ; and, in the same case, another bequest " for 
assisting to raise monuments to the memory of all 



1 Dawson v. Small, L. R. 18 Eq. (Eng.) 114 (1874). 

2 Hartson, ex'r, v. Elden et ah, 50 N. J. Eq. 522 (1892). 

3 Gilmer's legatees v. Gilmer's ex'rs, 42 Ala. 9 (1868). 



158 



MORTUARY LAW. 



other officers and soldiers from the State of Alabama 
who distinguished themselves, or those who have 
died from wounds or were killed in defence of their 
country, in the present war between the United 
States and Confederate States," was held to be void 
on account of the impossibility of its performance. 

A gift may be made, however, to a charity on 
condition that it should keep a tomb in repair, etc., 
and thus the desired purpose can be accomplished. 1 



1 Tyler v. Tyler, L. R., 1891, 3 Ch. Div. (Eng.) 252 (1890). 



RULES AND REGULATIONS. 



159 



CHAPTER XX. 

RULES AND REGULATIONS. 

Of the validity of rules and regulations of ceme- 
teries and matters connected therewith, their reason- 
ableness is the test. 

Municipal By-Laws and Ordinances. — A by-law of a 
city or town, in order to be valid, must be reasonable. 1 
By-laws which require dead bodies to be buried below 
a certain depth, or to be buried away from a place 
densely populated, or liable to become so, or within a 
reasonable time after death, etc., are all reasonable 
and valid, as otherwise a nuisance might be created. 2 
But it is doubtful if the interment of the dead can 
be taken out of the hands of the relatives if they are 
able and willing to attend to it, and the validity of a 
by-law to that designed effect is equally uncertain. 3 
In the case of Ritchey v. City of Canton? a person 
bought of a cemetery corporation a lot in its cemetery, 

1 Bogert v. City of Indianapolis, 13 Ind. 134 (1859) ; Austin 
et al. v. Murray, 16 Pick. (Mass.) 121 (1834); Commonwealth v. 
Goodrich, 13 Allen (Mass.) 546 (1866) ; City of Austin v. Austin 
City Cemetery Association, 87 Texas, 330 (1894). 

2 Ritchey v. City of Canton, 46 111. App. 185 (1891) ; Bogert 
v. City of Indianapolis, 13 Ind. 134 (1859). 

8 Bogert v. City of Indianapol'is, 13 Ind. 134 (1859). 
4 Ritchey v. City of Canton, 46 111. App. 185 (1891). 



160 



MORTUARY LAW. 



and subsequently the company transferred its ceme- 
tery property to the city in which it was situated. 
Afterward the city council passed an ordinance pro- 
viding that no grave should be dug in the cemetery 
except by permission, and under the direction of the 
city sexton. It was held that the owner of the lot 
could not by such an ordinance be deprived of the 
right to dig a grave or have one dug in his lot in a 
safe and proper manner. In the case of Common- 
wealth v. Goodrich, 1 a regulation of a city, that no 
person, other than superintendents of cemeteries or 
duly licensed undertakers " shall dig any grave, bury 
any dead body, or open any tomb in any cemetery, 
graveyard, or other place in the city other than the 
cemetery, or move from any house or place within the 
city to any place of burial whatsoever, the body of 
any deceased person," was held to be reasonable and 
valid, as only, suitable persons — those that are trust- 
worthy and possessed of requisite knowledge and 
skill — should be allowed to transport dead bodies 
through the streets of a city, and inter the same, and 
as the public health of the city depends to a great 
degree upon the sanitary methods in such cases. In 
the case of Austin et al. v. Murray, 2 it was held that 
a by-law of a town, which prohibits all persons, with- 
out license from the selectmen, from burying any 
dead body brought into the town on any part of 
their own premises, or elsewhere within the town, 
was reasonable if the town was large and densely 
populated, or if the by-law limited the prohibition in 
its application to the populous portion of the town ; 

1 Commonwealth v. Goodrich, 13 Allen (Mass.) 546 (1866). 
3 Austin et al. v. Murray, 16 Pick. (Mass.) 121 (1834). 



UTILES AND REGULATIONS. 



161 



but that it would be unreasonable, and therefore 
invalid, being an unnecessary restraint upon the right 
of interment, if it applied to a country town in all its 
territory. 

A city cannot interfere in any way, by by-laws or 
otherwise, with cemeteries beyond the city limits, 
which the city has not established, and does not own 
or control. 1 

By-Laws of Cemetery Associations. — Rules and regu- 
lations of cemetery corporations governing lot owners 
must be general in their application, and equally affect 
all the owners, and be reasonable, in order to be valid. 2 
And a lot owner's rights cannot be abridged by the 
passage of unreasonable by-laws subsequently to his 
purchase of the lot. 3 

Denominational Cemeteries. — Churches may estab- 
lish rules for the government of cemeteries belonging 
to them, but cannot restrict or affect the police power 
of the State, nor determine questions affecting property 
rights or other secular matters. The only other test 
of their validity is their reasonableness. They must 
become operative and be made known to the owner of 
a lot before he purchases it of the church. 4 

1 Begein et al. v. City of Anderson, 28 Ind. 79 (1867). 

2 Rosehill Cemetery Co. v. Hopkinson, ex'x, 114 111. 209 
(1885). 

3 Mt. Moriah Cemetery Association v. Commonwealth, 81 Pa. 
St. 235(1876). 

4 Dwenger et al. v. Geary et al, 113 Ind. 106 (1887). 



11 



162 



MORTUARY LAW. 



CHAPTER XXI. 

TAXATION. 

At common law, cemeteries and the property within 
them were taxable as other property was, and could be 
sold on execution for taxes as other property unless 
exempted by its charter. 1 The graves, however, would 
not be allowed to be desecrated. 2 But now all ceme- 
teries are exempt from general taxation by force of 
statutes in the several States of the Union. They are 
thus exempted in two ways, first, by a general stat- 
ute, and, second, by a clause in the charter when they 
are specially incorporated. 

The reason of this exemption is not the financial 
benefit to cemetery associations, but the preservation 
of burial places for the use to which they are appropri- 
ated, and to secure their perpetuity as resting places 
of the dead, and thus guard against their desecration, 
which would result if the property were liable to be 
sold for taxes, 3 and, if it were sold to be kept as it is, 
filled with graves perhaps, it could not be of any value 
to the purchaser, and the law will not allow it to be 

1 Bloomington Cemetery Association v. People, 139 111. 16 
(1891). 

2 Louisville v. Nevins, Sfc, 10 Bush (Ky.) 549 (1874). 

8 Proprietors of Cemetery of Mount Auburn v. Mayor, tfc. of 
Cambridge et al, 150 Mass. 12 (1889). 



TAXATION. 



163 



desecrated. 1 The court will construe the statute in 
the broad sense, having this end in view. 2 

What is meant by Taxes. — The New Jersey court 
says that the words " taxation " and " assessments," 
as used in the statutes exempting cemetery property 
from taxation, are not of the same import ; the first 
referring to the raising of revenue, and being gen- 
eral ; the second relating to improvements, and being 
special. 3 The Maryland court holds, however, that 
the words mean the same thing. 4 In the case of City 
of Baltimore v. Proprietors of Grreen Mount Cemetery f 
the cemetery by its charter was not " liable to any 
tax or public imposition whatever," and the court 
held that the exemption included any tax for revenue, 
and did not include expense of opening a street, " and 
such charges as are inseparably incident to its loca- 
tion in regard to other property." 

Where cemeteries are exempted from " all public 
taxes," sewer assessments are public taxes, and there- 
fore exempt. 5 In the case of Olive Cemetery Co. v. 
City of Philadelphia? the charter of a cemetery cor- 
poration exempted it from taxation except for State 
purposes ; and the court held that the lots were not 
taxable for a sewer in the street next them. 

Where the exemption is from " all public taxes and 

1 State, frc. v. City of St. Paul, 36 Minn. 529 (1887). 

2 Louisville v. Nevin, Sfc., 10 Bush (Ky.) 549 (1874). 

3 Protestant Foster Home v. Mayor, frc. of City of Newark, 36 
N. J. L. 478 (1873). 

4 City of Baltimore v. Proprietors of Green Mount Cemetery, 
7 Md. 517 (1855). 

6 State, frc. v. City of St. Paul, 36 Minn. 529 (1887). 
6 Olive Cemetery Co. v. City of Philadelphia, 93 Pa. St. 129 
(18S0). 



164 



MORTUARY LAW. 



assessments," building a sidewalk in front of the cem- 
etery is an expense for which the cemetery is not 
liable to be assessed. 1 

If cemeteries are exempted from general taxation 
only, they can be taxed for local improvements, as for 
building and repairing streets. 2 

Where lands of a cemetery corporation are, by its 
charter, exempt from " taxation of any kind," it 
embraces the land, with the permanent improvements 
thereon, but not a fund invested in stocks the interest 
of which is devoted to the maintenance of the ceme- 
tery, the land and the fixtures thereon which it owns 
being exempt, but not its personal property. 3 

Kind of Property Exempted. — Permanent improve- 
ments on the cemetery lands, which are essential to 
its use and enjoyment as a burial ground, are treated 
the same as the lands themselves ; if one is exempt, 
the other is. 4 

What Land is Exempted. — A large lot of land 
bought for burial purposes is exempt from taxation 
under the statute, although there are only two graves 
in it ; 5 but land belonging to a cemetery corporation 

1 State, Sfc. v. City of St. Paul, 36 Minn. 529 (1887). 

2 Bloomington Cemetery Association v. People, 139 111. 16 
(1891); Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506 
(1871) ; Buffalo City Cemetery v. City of Buffalo, 43 Hun (N. Y.) 
127 (1887) ; Buffalo City Cemetery v. City of Buffalo, 118 N. Y. 
61 (1889) ; Lima v. Lima Cemetery Association, 42 Ohio St. 128 
(1884); City of New Castle v. Stone Church Graveyard, 33 Atl. 
Rep. (Pa.) 236 (1895). 

3 State v. Wilson, §*c, 52 Md. 638 (1879). 

4 Appeal Tax Court v. Baltimore Cemetery Co., 50 Md. 432 
(1878); State v. Wilson, §•<?., 52 Md. 638 (1879). 

6 Appeal Tax Court v. Zion Church of Baltimore, 50 Md. 
321 (1878). 



TAXATION. 



165 



not actually in use for burial purposes may be sold 
for a special tax like that of a private owner, unless 
exempted by its charter. 1 In the case of Mulroy v. 
Churchman et al., 2 a lot of forty acres was held as a 
cemetery, but only one acre was in actual use for 
burial purposes, it being partially fenced off from the 
rest, which was used as farm land, the court held that 
the balance of the lot was taxable. The case of 
Appeal Tax Court v. Zion Church of Baltimore 3 was 
that of a churchyard from which all bodies but two 
had been removed. The two that remained were 
those of former pastors of the church, and had been 
buried there more than forty years. The then in- 
cumbent of the church was also expected to be 
buried there. The court held that no part of the lot 
was taxable. 

The New Jersey court holds that the rule is that, 
if the amount of land owned by the cemetery com- 
pany, although not all buried over, is proper in 
amount, — that is, that there is no more of it than 
will be probably required within a few years, — it is 
all exempt from taxation. 4 

Where a cemetery association was incorporated 
under a special act which provided that it might pur- 
chase a certain tract of land for cemetery purposes, 
that " said corporation [shall not] be liable to be 

1 Bloomington Cemetery Association v. People, 139 111. 16 
(1891). This was the case of an unoccupied portion of a 
cemetery. 

2 Mulroy v. Churchman et al, 52 Iowa 238 (1879). 

8 Appeal Tax Court v. Zion Church of Baltimore, 50 Md. 321 
(1878). 

4 City of Hoboken v. Inhabitants of North Bergen, 43 N. J. L. 
146 (1881). 



166 



MORTUARY LAW. 



taxed for said land," that it might erect a dwelling- 
house, etc., and set off a garden ; and fifteen years 
later the corporation purchased a lot of land on the 
opposite side of the highway from the cemetery, and 
laid it out into burial lots and avenues, having upon 
it a small dwelling-house occupied by the superin- 
tendent of the cemetery, who paid no rent therefor, 
the use being a part of his salary, and two small 
barns used for the keeping of the horse, carts, and 
tools owned by the corporation for the work in the 
cemetery ; and three years subsequently the corpora- 
tion was authorized by statute to take and hold, by 
purchase or otherwise, so much real or personal estate 
as was necessary to its objects, and to be used for 
such objects ; it was held that the new lot was thereby 
rendered exempt from taxation, it not being necessary 
to have that effect that the new lot should adjoin the 
original lot. 1 

A charter of a cemetery corporation which ex- 
empts its property from taxation " so long as the 
same shall remain dedicated to the purpose of a cem- 
etery," cannot be made to include a lot of land on the 
opposite side of the road from the cemetery, which is 
rented to the sexton, who uses it as a residence and for 
the purposes of husbandry, and who pays rent there- 
for. 2 In the case of People v. Grraceland Cemetery 
Co.* a lot of land owned by the cemetery company was 
situated across the street from the cemetery, and the 

1 Proprietors of Rural Cemetery v. County Commissioners of 
Worcester, 152 Mass. 408 (1890). 

2 Evangelical Lutheran Cemetery Association v. Lange, asses- 
sor, 16 Mo. App. 468 (1885). 

8 People v. Graceland Cemetery Co., 86111. 336 (1877). 



TAXATION. 



167 



court held, though it was platted and recorded as 
cemetery lands, but never used as such, and the com- 
pany had erected thereon a stable and some houses, 
occupied by men in the employ of the company, and 
removed mould and sand therefrom, and used it as 
needed in repairing the ground actually used for 
cemetery purposes, that such use of the property 
did not render it exempt from taxation under the 
terms and spirit of the charter, which exempted from 
taxation all property held and actually used by the 
corporation for burial purposes, or for the general 
uses of lot holders, or subservient to burial uses, and 
which had been platted and recorded as cemetery 
grounds. 

Who should be Assessed. — As the corporation is the 
owner in fee of the land of an incorporated cemetery 
association, purchased for the purposes of the associa- 
tion, it is proper to assess the tax, when it is assessable 
against any one, for the whole premises upon the cor- 
poration, and not upon the lots to their individual 
owners. 1 

Effect of Prohibition of Interments. — Where lands 
are thus exempt from taxation under a statute, 
they will remain exempt, though no dead body is 
buried therein, when burials therein are prohibited 
by a valid city ordinance passed after the lands were 
acquired. 2 

Collection of Taxes. — Where cemetery lands are 
allowed to be assessed for taxes, the law will not 

1 Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503 
(1871). 

2 Oak Hill Cemetery Association v. Pratt et al., assessors, 129 
N. Y. 68 (1891). 



168 



MORTUARY LAW. 



permit the cemetery as such to be disturbed. The 
collection must be enforced in equity. 1 

Quashing Assessments, etc. — To quash the proceed- 
ings of the mayor and aldermen, and restrain the 
collector of the city from selling cemetery lands for 
taxes, procedure is by writ of certiorari? 

1 Lima v. Lima Cemetery Association, 42 Ohio St. 128 (1884). 

2 Proprietors of Cemetery of Mount Auburn v. Mayor, Sfc. of 
Cambridge et al, 150 Mass. 12 (1889) ; Proprietors of Rural 
Cemetery v. County Commissioners of Worcester, 152 Mass. 408 
(1890). 



SALE OF CEMETERY PROPERTY. 169 



CHAPTER XXII. 

SALE, MORTGAGE, AND PARTITION OF CEMETERY 
PROPERTY. 

The law regarding the sale, mortgage, and partition 
of cemetery property is necessarily different from that 
relating to other kinds of real estate. 

SALE OF CEMETERY PROPERTY. 

Good order, decency, and a just regard for the dead 
require that a lot used for the burial of the dead, while 
such use is existing, shall not be sold. Where a man 
bought a lot in a cemetery for the burial of himself 
and his family, and his wife greatly improved the lot 
at her and her husband's expense, and her parents and 
one of her sons and a brother of the husband had been 
buried therein, if her husband sells the lot for a valu- 
able consideration to a stranger, the wife can main- 
tain an action restraining the husband from conveying 
it. She is also entitled to have judgment entered 
therein, specifically devoting the lot to the objects for 
which it had been purchased and improved. 1 

Sale on Execution. — Burial lots are generally ex- 
empt by statute from levy and sale on execution. 



1 Schroder v. Wanzor, 36 Hun (N. Y.) 423 (1885). 



170 



MORTUARY LAW. 



MORTGAGE OP CEMETERY PROPERTY. 

All cemeteries other than private ones are public 
in their nature, says the Minnesota court, and cannot 
be mortgaged. 1 The Pennsylvania court, however, 
holds that they can be ; 2 and so, as in the case of 
eminent domain, the question whether a large pro- 
portion of our cemeteries are public or private in 
their nature is far from settled. 

The mortgagee of a burial ground takes the mort- 
gage with notice of the purposes to which the ground 
is devoted, and he is bound by the rights of burial, 
temporary or perpetual, granted by the mortgagor 
while in possession ; 3 andj he cannot desecrate the 
cemetery. 4 

Where a cemetery association made a mortgage of 
their cemetery grounds, a stone curbing which they 
had placed around a burial lot still owned by the 
association, and a monument which they had erected 
on the lot, consisting of a stone foundation extending 
below the frost line, and having upon the foundation 
a marble base surmounted by a marble shaft, and 
upon the shaft a statue, the whole being cemented 
together, and the entire work being built for the orna- 
mentation of the grounds, the curbing and monument 
are so fixed to the realty as to be a part thereof, and 

1 Wolford v. Crystal Lake Cemetery Association, 54 Minn. 440 
(1893). 

2 Oakland Cemetery Co. v. Bancroft, 161 Pa. St. 197 (1894). 

8 Moreland et al. v. Richardson et al., 24 Beav. (Eng.) 33 
(1857). 

4 Moreland et al. v. Richardson et al., 22 Beav. (Eng.) 596 
(1856). 



PARTITION OF CEMETERY PROPERTY. 171 

to pass with the realty under the mortgage. They 
are not personal property, nor trade fixtures, and were 
intended to be a part of the realty. 1 Of course, such 
things in a lot of a person having only the easement 
of burial would be personal property. 

In the case of Lautz v. Buckingham, 2, the court held 
that the mortgage of a lot in a cemetery given back to 
the owner of the cemetery at the time of the pur- 
chase thereof is good, and can be enforced ; and that 
the statute which exempts burial lots from sale on 
execution does not apply to voluntary acts of the 
owner. 

PARTITION OF CEMETERY PROPERTY. 

When a church owns a cemetery, and a division of 
the church takes place, the cemetery ought not to be 
divided also. 8 

1 Oakland Cemetery Co. v. Bancroft, 161 Pa. St. 197 (1894). 

2 Lautz v. Buckingham, 4 Lans. (N. Y.) 484 (1871). 
8 Brown v. Lutheran Church, 23 Pa. St. 495 (1854). 



172 



MORTUARY LAW. 



CHAPTER XXIII. 

CARE AND CONDUCT OF CEMETERIES. 

The general control of cemeteries is under those 
parties who have the freehold in general possession. 
Cities can control only such cemeteries as belong to 
them ; 1 and cemetery associations, etc., are limited to 
the control of their own cemeteries. After the dedi- 
cation of land to burial uses of the people of the neigh- 
borhood, the original owner has no greater control of 
it than the neighbors, of whom he is one, who bury 
their dead there. 2 

The general owners of the freehold must adopt 
measures for the security of the grounds, establish 
avenues, and refrain from injuring private property of 
lot owners that is rightfully in the cemeteries. 3 

Lots sold to individuals are to be cared for by the 
owners, and not by the association; 4 even though 

1 Wood et al. v. Macon and Brunswick R. R. Co. et al, 68 
Ga. 539 (1882); Bogert v. City of Indianapolis, 13 Ind. 134 
(1859). 

2 Pierce v. Spafford, 53 Vt. 394 (1881). 

8 Wood et al. v. Macon and Brunswick R. R. Co. et al, 68 Ga. 
539 (1882). 

4 Bourland et al. v. Springdale Cemetery Association, 56 111. 
App. 298 (1894) ; Bourland v. Springdale Cemetery Association, 
42 N. E. Rep. (111.) 86 (1895). 



CARE AND CONDUCT OF CEMETERIES. 173 



the charter provides that the association out of the 
proceeds of sales of lots shall " keep the grounds in 
repair and in good order." 1 

The Puritan founders of New England chose the 
most bleak and barren spots for their burial places, 
and kept them so, as Whittier truly says : — 

" Our vales are sweet with fern and rose, 
Our hills are maple-crowned ; 
But not from them our fathers chose 
The village burying ground. 

" The dreariest spot in all the land 
To Death they set apart ; 
With scanty grace from Nature's hand, 
And none from that of Art. 



" For thus our fathers testified — 
That he might read who ran — 
The emptiness of human pride, 
The nothingness of man." 

But since those early days the sentiment of the com- 
munity has entirely changed, and refinements intro- 
duced by modern taste have commended themselves 
to general approbation. Public authorities as well as 
cemetery associations now skilfully embellish their 
various cemeteries with trees and shrubs and flow- 
ers, and works of art. 2 Beautiful creations of taste 
and genius relieve the external gloom, and soften the 

1 Bourland v. Springdale Cemetery Association et al, 158 111. 
458 (1895). 

2 Wood et al. v. Macon and Brunswick R.R. Co.et al., 68 Ga. 
539 (1882); Town of Lake View v. Rose Hill Cemetery Co., 70 
LI. 191 (1873). 



174 



MORTUARY LAW. 



repulsive associations of the grave. Skill and taste 
should be applied to the grading, arrangement of 
avenues, alleys, and squares, and in the planting of 
trees and shrubbery. 1 

In order to insure regularity, permanence, and pro- 
gress, it is absolutely necessary that there should be 
a general power of control in some one body, acting 
in pursuance of a matured and harmonious design. 1 
Lot owners must not have control of the grounds be- 
yond their lots, and even in them they are limited 
to acts of preservation and embellishment, restricted 
in some degree by the general opinion of the com- 
munity. 2 

If the officers of a corporation fail to keep the 
walks, drives, and approaches of its cemetery in 
proper repair, a lot owner can maintain a bill in 
equity against them. 3 

In the case of Perkins v. City of Lawrence? in a 
cemetery belonging to the city the authorities built a 
wall and terrace in a vacant triangular space, and 
closed the avenue which ran by it, but did not impair 
the means of access to or value of the lot of the plain- 
tiff which he had purchased before the wall and ter- 
race were built. The court found that the alteration 
was made in good faith for the improvement of the 
cemetery, and held that the owner of the lot, not 
being injured, could not object. 

1 Seymour v. Page, 33 Conn. 61 (1865). 

2 Seymour v. Page, 33 Conn. 61 (1865) ; Commonwealth v. Viall, 
2 Allen (Mass.) 512 (1861). 

8 Houston Cemetery Co. et al v. Drew et al, 36 S. W. Rep 
(Texas) 802 (1896). 

4 Perkins v. City of Lawrence, 138 Mass. 361 (1885). 



CABJE AND CONDUCT OF CEMETEKIES. 175 

Where towns are authorized by the legislature " to 
provide burial grounds," and no further directions 
are given, they are not limited as to the amount of 
money to be raised therefor, the quantity of land to 
be appropriated for the purpose, nor how it shall be 
fenced, laid out, arranged, or managed, and they are 
not prohibited from making it beautiful and attrac- 
tive, instead of unsightly and repulsive ; the exercise 
of their judgment extending to matters of taste in 
respect to both. 1 In the case of Commonwealth v. 
Viall, 2 which was one concerning the cutting of trees 
by the owner of the soil, who had dedicated the 
burial ground to the use of the people of the neigh- 
borhood years before, and it had been extensively 
used by them for interments, and before the trees 
were cut had been taken by the town as a public 
cemetery, Justice Hoar said : " The growth of these 
trees may have been watched with affectionate inter- 
est by friends and relatives of the departed, whose last 
resting place has been made more pleasant to the 
imagination of the survivors by the thought that it 
might become a resort of birds, and a place for wild 
flowers to grow ; that waving boughs would shelter it 
from summer heat and protect it from the bleak winds 
of the ocean. The fallen leaf and withered branch 
are emblems of mortality ; and in the opinion of 
many a tree is a more natural and fitting decoration 
of a cemetery than a costly monument." 

A cemetery is protected by law in respect to the 
ornamental portion of it, as well as the more matter- 

1 Jenkins et al. v. Inhabitants of Andover et ah, 103 Mass. 94 
(1869). 

2 Commonwealth v. Viall, 2 Allen (Mass.) 512 (1861). 



176 



MORTUARY LAW. 



of-fact and substantial and necessary parts. 1 Statutes 
have been passed in most of the States, if not all, to 
this effect. Even the birds that hibernate there are 
thus protected in some States. 

1 Evergreen Cemetery Association v. City of New Haven, 43 
Conn. 234 (1875). 



RIGHTS AND LIABILITIES OF LOT OWNERS. 177 



CHAPTER XXIY. 

EIGHTS AND LIABILITIES OF LOT OWNEES. 

The tenure of a lot owner depends not only upon 
the terms of the deed itself, but upon the act of in- 
corporation of the cemetery from which the title is 
derived, and to the limitations of its powers, and the 
manifest intent of the parties to the instrument. 

The burial of dead bodies in the land of a third 
person without right, and without the consent of the 
owner, gives no title thereto or interest therein, until 
a prescriptive or other right or title can be shown. 1 

Tenure. — Every owner of a burial lot must be 
deemed to have purchased and to hold it for the sole 
purpose of using it as a place of burial. 2 

A deed of a burial lot from a cemetery association, 
if they have power to make such a conveyance, the 
habendum clause being " to have and to hold," etc., to 
the said, etc., " his heirs and assigns, for the uses of 
sepulture only, and to or for no other whatever, sub- 
ject, however, to the condition and limitation and with 
the privileges specified in the rules and regulations 
now made or that may hereafter be made and adopted 

1 Bonham v. Loeb, 18 So. Rep. (Ala.) 300 (1895). 

2 Went v. M. P. Church of Williamsburgh et al., 80 Hun 
(N. Y.) 266 (1894). 

12 



178 



MORTUARY LAW. 



by the managers of the said cemetery for the govern- 
ment of the lot holders and visitors of the same," 
passes the fee and the possession, though the company 
is to have the general care and management of the 
cemetery, it not being incompatible with the rights of 
the lot owners to manage their own lots. 1 

Generally, the right in the lot is an easement only, 
the right to use it for burial and cemetery purposes, 
but with no other interest in the fee. 2 But under the 
peculiar nature of the subject matter, as an easement 
cannot be gained except by deed or by a prescription 
of long standing, the courts term the right of burial in 
lots a license only, though with one or two exceptions 
they have all the qualities of easements. In the case 
of Conger v. Treadway? a conveyance of land having 
been made to ten persons, on condition that the same 
was conveyed " for the purpose of a cemetery or bury- 
ing place for the dead, and for no other purpose," 
a man bought a lot therein, but did not obtain a 
deed, which was promised to him, and he buried his 
dead in the lot from time to time, and erected monu- 
ments and beautified the lot, to the knowledge of the 
owner, the court held that the title to the land itself 
did not pass, but the exclusive right of burial did, no 
formal deed being necessary. A certificate of a burial 
lot, signed by the secretary of the board of trustees of 
a cemetery association only, without seal or other for- 
mality, passes no interest in the land, as an easement 

1 N. Y. Bay Cemetery Co. v. Buckmaster, 49 N. J. L. 449 
(1887). 

2 Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503 
(1871). 

8 Conger v. Treadicay, 50 Hun (N. Y.) 451 (1888). 



RIGHTS AND LIABILITIES OF LOT OWNERS. 179 



or otherwise ; it is a license only. 1 The following is 
a copy of the certificate in the case of McGuire, 
adrn'r, v. Trustees of St. Patrick's Cathedral, 2 which 
was held to convey a license only : — 

" No. 726. Calvary Cemetery, 

" 266 Mulberry Street. New York, Nov. 22, 1870. 

" Received from John McGuire ten dollars, being the amount 
of purchase money of a grave two feet by eight in Calvary Cem- 
etery, with privilege to erect a headstone thereon. 

" D. Brennan, 
Supt. of Office of Calvary Cemetery. 
" Grave 9, Plot F, Section 8, Range 56." 

The title to the soil of Roman Catholic cemeteries 
is in the Bishop of the Catholic Church, in trust for 
the congregations and societies of the church under 
him, to be by them used and enjoyed according to the 
principles and polity of that church, to be used ex- 
clusively for the interment of those who at the time 
of their death were in regular standing in that church, 
according to its principles, usages, and doctrines ; it 
being consecrated by religious services to that use ; 
and according to its rules a permit must first be 
granted by the pastor of the church. The lot owner 
is bound by such doctrines and policies of the church, 
if he know r s of them, and agrees to them, etc. 3 But 

1 Dwenger et al. v. Geary et al, 113 Ind. 106 (1887) ; Part- 
ridge et al. v. First Independent Church of Baltimore, 39 Md. 631 
(1S73); Rayner v. Nugent et al., adm'rs, 60 Md. 515 (1883); 
McGuire, adm'r, v. Trustees of St. Patrick's Cathedral, 54 Hun 
(X. Y ) 207 (1889) ; Kincaid's Appeal, 66 Pa. St. 411 (1870). 

2 McGuire, adm'r, v. Trustees of St. Patrick's Cathedral, 54 
Hun (N. Y.) 207 (1889). 

8 Dwenger et al. v. Geary et al., 113 Ind. 106 (1887). 



180 



MORTUARY LAW. 



none but the church itself can rightfully declare who 
is a Catholic, it being a question of church govern- 
ment and discipline, and must be determined by the 
ecclesiastical authorities ; and their decision is final. 1 
A person who, having a sane mind, commits suicide, 
is never allowed knowingly to be interred in a Catholic 
cemetery. 2 In Canada an attempt was unsuccessfully 
made to refuse burial to a member of the " Institut 
Canadien," a literary society which had incurred 
ecclesiastical censure, the Bishop of Montreal having 
in his lifetime forbidden such membership on pain of 
being deprived of the sacrament. 3 

It is probably true that any organization, religious 
or secular, may control the right of burial in its own 
cemetery, and declare who shall enjoy it ; and that 
liberty must be exercised so as not to encroach upon 
prior rights of others, but binds those who obtain 
privileges after such rights are acquired, taking sub- 
ject to them. To hold otherwise would leave every 
possessor of a lot the privilege to do as he liked, and 
inter whom he pleased, however much his act might 
disturb the consciences of others. All that a lot 
owner acquires in a Catholic cemetery is a privilege 
to use it for the purpose to which it was dedicated, 
and the rules in force when he acquires such privilege 
measure the extent of, and limit, that use. 4 

1 White Lick Quarterly Meeting, Sfc. v. White Lick Quarterly 
Meeting, Src, 89 Ind. 136 (1883) ; Dwenger et al. v. Geary el al., 
113 Ind. 106 (1887); McGuire, aJm'r,v. Trustees of St. Patrick's 
Cathedral, 54 Hun (N. Y.) 207 (1889). 

2 Dwenger et al. v. Geary et al., 113 Ind. 106 (1887). 

8 Brown v. Cure, fyc. of Montreal, L. R. 6 P. C. App. (Eng.) 
157 (1874). 

* Dwenger et al. v. Geary et al, 113 Ind. 106 (1887). 



EIGHTS AND LIABILITIES OF LOT OWNERS. 181 

Duration of Tenure. — A license to bury in the 
Catholic cemeteries may be revoked upon the licen- 
see's becoming anti-Catholic, and equity will not aid 
in preventing the same. 1 In the case of McGruire, 
adrrir, v. Trustees of St. Patrick's Cathedral, 1 when 
the license was obtained the purchaser was a Catholic, 
but before he died he had apparently opposed the 
faith, and was not recognized as a Catholic by the 
church. The permit to bury was refused, though 
the wife of the deceased had been buried in the lot. 
Justice Daniels dissented from the rest of the court, 
holding that no evidence of any act on the part of 
the deceased that was scandalous or sinful had been 
introduced, that he had died in the faith of the Cath- 
olic Church, and that the permit ought not to be 
refused without giving the lot owner a chance to be 
heard. 

The right to inter bodies in lots in cemeteries, be it 
an easement or a license, cannot continue longer than 
the territory is used as a cemetery, 2 or the corpora- 
tion decide that the ground is no longer desirable 
as a place of interment, and the license is revoked, 
the right of future interment being thus extinguished. 3 
So of the burying ground of a church. 4 

Interest in Proceeds of Sales of Lots. — Where a town 
cemetery is discontinued, lots in a new cemetery being 
given to owners of lots in the old one, and the bodies, 

1 McGuire, adm , r, v. Trustees of St. Patrick's Cathedral, 54 
Hun (N. Y.) 207 (1889). 

2 Page v. Symonds et at, 63 N. H. 17 (1883); Kincaid's Ap- 
peal, 66 Pa. St. 411 (1870). 

3 Rayner v. Nugent et al, adm'rs, 60 Md. 515 (1883). 

4 Kincaid's Appeal, 66 Pa. St. 411 (1870). 



182 



MORTUARY LAW. 



monuments, etc. removed, and the town voted that 
" all money received from the sale of lots," etc., 
" shall constitute a fund for the purpose of defraying 
the expense of repairing and improving the avenues, 
walks, and public grounds of the cemetery," there is 
no contract with the lot owners that the money re- 
ceived from that source shall be applied to the use 
and improvement of the cemetery, nor that the fund 
shall be set apart as a trust fund. 1 

Duty to others. — Every right in a cemetery lot, from 
an absolute ownership to an easement and license, is 
held subject to the restriction that it shall not be so 
exercised as to injure others. 2 

Rights of the Public. — Lots are always held subject 
to the right of the public to take them for its own use 
if public necessity requires, 3 or when the abolition 
of the burial ground is necessary for sanitary 
reasons." 4 

Rules and regulations of the public burial board 
control lot owners in the use of their lots. 5 

Removal of Bodies on Abolition of Cemetery. — When 
it becomes necessary to vacate the ground for burial 
purposes, all that the lot holder can claim is notice 
of such vacation, that he may remove the bodies in- 
terred therein, and also the monuments, gravestones, 
etc., which he has placed thereon. 6 That is his only 

1 Fayet al. v. Inhabitants of Mi! ford, 124 Mass. 79 (1878). 

2 Kincaid's Appeal, 66 Pa. St. 411 (1870). 

3 Page v. Symonds et al., 63 N. H. 17 (1883). 

4 Kincaid's Appeal, 66 Pa. St. 411 (1870). 

5 McGough v. Lancaster Burial Board, L. R. 21 Q. B. Div. 
(Eng.) 323 (1888). 

6 Partridge et al. v. First Independent Church o f Baltimore, 39 
Md. 631 (1873) ; Kincaid's Appeal, 66 Pa. St. 411 (1870). 



EIGHTS AND LIABILITIES OF LOT OWNERS. 183 

remaining right, and after that is exercised his inter- 
est and right therein absolutely cease. 1 On his fail- 
ure to make such removal, others interested in the 
abolition of the cemetery can do so at their own ex- 
pense. 2 The expense of removal, when it is done by 
the lot owner himself, can be collected of the parties 
in whose interest the abolition is made. 2 But he can- 
not claim compensation for monuments, vaults, etc., 
if he permits them to remain. 3 He can have no claim 
for reimbursement of the amount he paid for his 
right, whether he has ever used the lot for interments 
or not. 4 

Interest in the Rest of the Cemetery. — Lot owners 
and owners of graves have no control or rights in the 
remainder of the cemetery, except rights of way and 
such rights as are had by the public. 5 

If a corporation fails to keep the walks, drives, and 
approaches of its cemetery in proper repair, a lot 
owner can compel it to do so by a bill in equity. 6 

Where a lot is sold witli reference to a plan, on 
which appears a certain avenue leading to or close 
beside the lot, affording a convenient highway to and 
from it, the purchaser has a right of way over it, and 

1 Rayner v. Nugent et al, adm'rs, 60 Md. 515 (1883). 

2 Kincaid's Appeal, 66 Pa. St. 411 (1870). 

8 Partridge el al. v. First Independent Church of Baltimore, 39 
Md. 631 (1873). 

4 Rayner v. Nugent et al, admWs, 60 Md. 515 (1883); Kin- 
Quid's Appeal, 66 Pa. St. 411 (1870). 

5 Moreland et al. v. Richardson et al., 22 Beav. (Eng.) 596 
(1856) ; Seymour v. Page, 33 Conn. 61 (1865); Price et al. v. M. 
E. Church et al, 4 Ohio 515 (1831). 

6 Houston Cemetery Co. et al. v. Drew et al, 36 S. W. Rep. 
(Texas) 802 (1896). 



184 



MOKTUARY LAW. 



it cannot be legally obstructed. Equity will protect 
this right by injunction if necessary, whether the 
lot owner has an absolute or a qualified interest in 
the lot. 1 

Privileges of Visitors. — Persons visiting the graves 
of deceased relatives or friends for the purpose of 
testifying their respect or affection for the dead have 
a right to do so, and, if they are improperly interfered 
with by the owner of the easement, a court of equity 
will interfere for their protection. 2 

Right to build Vaults and Tombs. — Every owner of 
a cemetery lot or other interest in a burial place, hav- 
ing the right to erect and maintain vaults for the pur- 
poses of interment, is subject to the police power of 
the State, in the exercise of which future interments 
may be prohibited and remains of persons already 
buried caused to be removed ; and the power may be 
delegated to municipal corporations, and enforced by 
appropriate ordinances. 3 No conditions or covenants 
in deeds can prevent the legislature from declaring 
such use unlawful and causing its abandonment. 4 

In the case of Rosehill Cemetery Co. v. Hoj^kinson, 
ex'xf the cemetery company had a rule that no vault 
or tomb should " be constructed in the cemetery until 

1 Burke v. Wall et al, 29 La. Ann. 38 (1877). This servi- 
tude may be shown orally. 

2 Smiley et al. v. Bartlett et al, 6 Ohio C. C. 234 (1892). 

3 Page v. Symonds et al, 63 N. H. 17 (1883) ; Went v. M. P. 
Church of Williamsburgh et al, 80 Hun (N. Y.) 266 (1894) ; 
Humphrey et al v. T rustees of M. E. Church, 109 N. C. 132 (1891). 

4 Went v. M. P. Church of Williamsburgh et al, 80 Hun (N. Y.) 
266 (1894). 

5 Rosehill Cemetery Co. v. Hopkinson, ex'x, 114 111. 209 
(1885). 



EIGHTS AXD LIABILITIES OF LOT OWNEES. 185 

the designs of the same accompanying the specifica- 
tions, and a diagram of location, shall have been sub- 
mitted to the board of managers, and approved by 
them " ; and the deed of the lot in question was drawn 
subject to the act of incorporation and the rules and 
regulations thereto annexed, etc., one of the rules 
annexed being as follows : " The proprietor of each 
lot shall have the right to erect any proper stone or 
monument or sepulchral structure therein, except that 
no vault shall be built entirely above ground without 
permission of the company, and no monument and 
no portion of vaults above ground shall be of other 
material than cut stone, granite, or marble, without 
the consent of the company." The owner of the lot 
proceeded to erect a vault upon it, when the cemetery 
officers prevented further work. The vault was in 
itself satisfactory to the board of managers, but they 
objected to having a vault built on that particular lot, 
as it was in front of the entrance, and would some- 
what obstruct the view. The court granted the prayer 
of a bill for an injunction against the interference of 
the cemetery corporation. 

Interest in Associations. — Where the charter of an 
incorporated association provides that the members 
thereof numbering from five to fifteen, for instance, 
shall be elected by the association, lot owners do not 
become members until they are so elected, 1 and have 
no right to inspect the books of the company. 2 

Where an unincorporated association owns a burial 

1 BourJand v. Springdale Cemetery Association, 42 N. E. Rep. 
(111.) 86 (1895). 

2 Bourland et al. v. Springdale Cemetery Association, 56 111. 
App. 298 (1891). 



186 



MORTUARY LAW. 



ground, and provides that, if members withdraw, they 
shall " have no more right or title or interest in the 
aforesaid society, or interest in the benefit arising 
from the graveyard of the said society," it is not 
meant that a member owning a lot in the cemetery, 
in which he has made interments of persons in his 
family, loses all rights of burial in said lot, but is con- 
fined to the interest of the association in the income 
from the sale of lots, etc. in the cemetery. The 
owner of the lot acquires the privilege and right of 
making interments in the lot to the exclusion of 
others, so long as the ground remains a cemetery, 
and could maintain trespass quare clausum f regit for 
breaking and entering the same by digging a grave 
therein, in which the defendant buried the remains of 
a person without the consent of the plaintiff, who is 
the owner of the lot. And where malice or want of 
good faith is shown, the plaintiff is entitled to puni- 
tive damages. 1 

Rights in Free Cemeteries. — In a free neighborhood 
cemetery, when one has staked out a lot and entered 
into possession of it, and has not abandoned it, it is 
trespass in another to fence a part of this lot into 
his own lot, or to obstruct a roadway necessary for its 
use ; and the possessor of the lot can defend his pos- 
session against such appropriation by his neighbor. 2 
A cemetery corporation is liable also to the proprie- 
tor of a grave for the negligent burial of a stranger 
therein. 3 Where a man bought a lot in a cemetery of 

1 Smith v. Thompson, 55 Md. 5 (1880). 

2 Pierce v. Spafford, 53 Vt. 394 (1881). 

8 Donnelly v. Boston Catholic Cemetery Association, 146 Mass. 
163 (1888). 



EIGHTS AND LIABILITIES OF LOT OWNERS. 187 

a city and interred his child therein, the city having, 
through the agency of the sexton, the sole control and 
supervision of the cemetery, and the city subsequently 
wrongfully sold the lot to another person, the sexton 
carefully removing and reinterring the remains in a 
common burial lot, not knowing that the lot belonged 
to the father of the dead child, judgment was given 
against the city in a civil action brought for the 
trespass, the damages being merely nominal. 1 

Ornamentation. — The owners of lots or graves have 
a right to ornament them with shrubs and flowers ; 3 
and where a lot owner is given this right in the deed 
of the lot, he does not lose it by a rule or regulation of 
the cemetery association that he cannot have the work 
of ornamentation performed by others than himself 
and the cemetery employees, passed subsequently to 
the delivery of the deed. 3 

Recovery of Possession. — If a lot owner is ousted of 
his possession, his title to the lot and right of posses- 
sion as licensee is insufficient to support an action of 
ejectment, the cemetery company having the posses- 
sion legally. 4 

Construction of Deeds as to Bounds. — The deed of a 
lot owner which bounds his lot on an avenue does 
not convey any title to the middle of the avenue, 
as it would in ordinary conveyances. His right is 
only that which all the lot owners have, — a right of 
passage simply. 5 If the right of way to and from a 

1 Hamilton v. City of New Albany, 30 Ind. 482 (1868). 

2 Ashby v. Harris, L. R. 3 C. P. (Eng.) 523 (1868) ; Common- 
wealth v. Viall, 2 Alien (Mass.) 512 (1861). 

8 Silverwood v. Latrobe et al, 68 Md. 620 (1888). 
* Hancock v. McAvoy, 151 Pa. St. 460 (1892). 
6 Seymour v. Page, 33 Conn. 61 (1865). 



188 



MORTUARY LAW. 



lot is not disturbed, and the owner is not injured 
thereby, a cemetery association, acting in good faith, 
can close up an avenue and an open space adjoining 
the lot, and apply it to purposes beautifying the 
grounds, in spite of the objection of the lot owner. 1 
These rights of the general owners of the cemetery 
are necessary in order to secure uniform taste and 
skill in the arrangement and care of the cemetery, 
and permanence and progress. 2 

Rights of Several Owners of Lots. — The purchase 
and use of a burial lot by several parties almost 
always cause disagreements and contests, and a 
state of things to be avoided. The only case of this 
kind of any importance is that of Lewis v. Walker's 
exWs? In this case four brothers bought a burial 
lot, and divided its area among themselves. In the 
middle of the entire lot they erected at their joint 
expense a monument, on each side of which they in- 
scribed the name of one of the brothers, and set apart 
the space opposite each name for such brother's 
family. In such a case, no one of the brothers can 
permit the interment in his portion of any person who 
is not a member of the family without the consent of 
the other brothers ; and if the executors of the widow 
of one of the brothers cut off the raised letters on the 
face of the monument next her deceased husband's 
portion of the lot, leaving a smooth level surface, 
equity will not require an entirely new monument to 
be erected. 

1 Perkins v. City of Lawrence, 138 Mass. 361 (1885). 

2 Seymour v. Page, 33 Conn. 61 (1865). 

3 Lewis v. Walker's cx'rs, 165 Pa. St. 30 (1894). 



REPLEVIN. 



189 



CHAPTER XXV. 

REPLEVIN. 

There is no property nor right of property in a 
coffin or shroud after burial sufficient to support an 
action of replevin. So that proceeding cannot be 
used to recover a coffin and its contents, especially 
when such contents are a corpse. Articles after 
burial are a portion of the earth itself, in the eye of 
the law, whether they have begun to decay or not, 
provided they are deposited in the ground with the 
consent of those who had any pecuniary interest in 
them, and for the purpose of interment. They are 
no longer articles of merchandise, nor the property of 
those who furnished them. If replevin would lie in 
such cases, how many petty disputes would arise com- 
pelling the tomb to be unearthed, and all the sacred- 
ness surrounding our friends' remains and their last 
resting place to be at the mercilessness of any one 
who would swear that he was entitled to the possession 
of a shroud, or of some petty article buried with the 
body. The question of ownership could not be tried 
and determined until the desecration was complete. 
Such things must not be. 1 The case of Gruthrie v. 
Weaver 1 was one where a sheriff, being possessed 

1 Guthrie v. Weaver, 1 Mo. App. 136 (1876). 



190 MORTUARY LAW. 

of a replevin writ authorizing him to take a certain 
coffin, opened the grave, and took the coffin with the 
remains therein, to hold the same until the question 
Of the title to the coffin — and body too, for that mat- 
ter — should be determined in the courts of law. 
The court used exceedingly strong language against 
such a practice, saying that " no civilized community 
would endure such a rule of law as this." 



LARCENY. 



191 



CHAPTER XXVI. 

LARCENY. 

A corpse cannot be stolen at common law, as it is 
not property ; but articles buried with it, which were 
merchandise before the interment, are also subjects 
of larceny after burial. These articles are the coffin, 
grave clothes, etc. In an indictment therefor they 
should be alleged to be the property of the person 
who furnished them and buried the deceased. 1 

It is larceny to take articles of dress from the body 
of a drowned man with the intention of stealing them ; 
and in such a case the articles may be alleged in the 
indictment to be the property of the administrator of 
the estate of the deceased, though no administrator 
has been appointed. 2 

It is also a misdemeanor at common law to attempt 
to commit such larceny. 3 

To determine the degree of the crime, whether 
petty or grand larceny, the value of the articles is 
what is reasonable as to their cost in the market. 3 

1 Haynes' 1 Case, 12 Coke (Eng.) 113 (1614); State v. Doepke, 
68 Mo. 208 (1878). In Haynes' Case, one William Haynes dug 
up the bodies of three men and one woman in one night, took 
off their winding sheets, and reinterred the remains. 

2 Wonson v. Sayward, 13 Pick. (Mass.) 402 (1832). 
8 State v. Doepke, 68 Mo. 208 (1878). 



192 



MORTUARY LAW. 



CHAPTER XXVII. 

DESECRATION OF CEMETERIES. 

The last resting places of the dead are regarded in 
a certain sense as sacred. They are universally con- 
sidered as being hallowed. No one, other than the 
owners of the soil and those who have easements or 
other rights therein, has a right to, or can with im- 
punity, disturb the soil, or anything in it or attached 
to it. Both the civil and criminal branches of the law, 
as well as equity, rise to their protection ; and even 
attempts to injure or in any way desecrate such places 
are punished, and the guilty parties prohibited from 
carrying out their designs. 

The Soil. — All suits for the disturbance of the soil 
can be brought by its general owners. If the soil is 
that of English churcbyards, they must be in the name 
of the parson, of cemetery associations in their cor- 
porate name, of public cemeteries in the name of the 
town or city owning them, of denominational ceme- 
teries in the name of the church, and of private cem- 
eteries in the names of the owners of them, as the 
freehold, which is the tenure disturbed, is in these sev- 
eral parties only. An action generally lies in favor 
of either the owners of the freehold or the owners of 



DESECRATION OF CEMETERIES. 



193 



the casement of burial, or both, when both have been 
injured, though it was early held in England that for 
the disturbance of human remains in churchyards 
only the parson had a right of action, the right of the 
heir of the deceased in the easement apparently being 
overlooked. 

Fixtures. — If gravestones or other things that have 
been placed on or attached to lots in cemeteries are 
injured or taken away in the lifetime of the person 
or persons who erected them, such person or per- 
sons must be the plaintiffs in suits for damages 
therefor at common law ; but if those persons have 
died before the injury is wrought, all subsequent suits 
must be brought by the heir of the deceased, and not 
his executor or administrator. 1 The same is true of 
a bill for an injunction, when injury is threatened; 2 
and if it is desired that the injunction should apply to 
the whole yard, all the parties having such interests 
must be joined. 3 The reason of these rules is that 
those who erect monuments, etc., have a greater in- 
terest in their preservation than any other person, and 
this interest the law aims to protect. No one is so 
likely to care for them after their erectors have passed 
away as the descendants or heirs of those whose mem- 
ory they preserve, and to them the law gives the right 

1 Day v. Beddingfield et al., Noy (Eng.) 104 (1637); Spooner 
v. Brewster, 3 Bing. (Eng.) 136 (1S25) ; Sabin et al., exWs, v. 
Harkness, 4 N. H. 415 (1828) ; Matter of Brick Presbyterian 
Church, 3 Edw. Ch. (N. Y.) 155 (1837) ; Mitchell et al. v. Thome, 
134 N. Y. 536 (1892) ; Pierce et ux. v. Proprietors of Swan Point 
Cemetery et al., 10 R. I. 227 (1872). 

2 Mitchell etal. v. Thome, 134 N. Y. 536 (1892). 

3 Moreland et al. v. Richardson et ah, 22 Beav. (Eng.) 596 
(1856). 

13 



194 



MORTUARY LAW. 



of action. 1 The fact that the ancestor died intestate 
makes no difference. 2 

Private Cemeteries. — In the case of Mitchell et al .V 
Thorne 2 a private burial place on the ancestor's own 
land, with a right of way thereto, was reserved to him 
and his heirs forever in a deed of the premises. The 
defendant, who held the estate under the grantee, 
proceeded to level off the graves, tear down the head- 
stones, and destroy the enclosing fence, and threat- 
ened to continue the desecration. One of the heirs 
of the deceased original grantor brought suit for dam- 
ages, and for an injunction restraining the threatened 
desecration. The court sustained the bill, and held 
that the fact that whether the ancestor had died tes- 
tate or intestate had no effect upon the case, and that 
the fact of intestacy need not be stated in the bill. 

Public Cemeteries. — In the case of Commomvealth 
v. Viall, s an ancient burial ground had been pastured 
by the owner of the fee, and otherwise treated as his 
own, except that he did not disturb the graves or their 
fixtures. It was taken by the town as a public cem- 
etery, and subsequently he undertook to cut down 
some of the trees and cultivate a portion of the 
ground, but was restrained by the court from further 
demolition or use as the owner of the title to the 
soil. 

Practice. — As the law can give only pecuniary 
damages for the desecration of a burial place, it is 

1 Sabin etal, ex'rs, v. Harkness, 4 N. H. 415 (1828) ; Matter 
of Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 155 (1837); 
Mitchell et al. v. Thorne, 57 Hun (N. Y.) 405 (1890). 

2 Mitchell et al. v. Thorne, 57 Hun (N. Y.) 405 (1890). 
8 Commonwealth v. Viall, 2 Allen (Mass.) 512 (1861). 



DESECRATION OF CEMETERIES. 195 



inadequate as a means of protection. The equity 
court should be sought, and an injunction obtained 
to stop further desecration without delay. 

In a civil action brought by an heir for the desecra- 
tion of a cemetery lot for the recovery of damages, it 
is not necessary that all other parties having interests 
similar to that of the plaintiff should join with him, 
as he can only recover to the extent of his individual 
damage. 1 

Relatives or friends of the deceased persons buried 
there may enjoin the owner of the fee of a cemetery 
from desecrating their graves, or meddling with the 
monuments, etc., and all parties interested need not 
be joined as plaintiffs. 2 

The form of the action to be brought at law for 
damages is trespass, and not case. 3 

Where a cemetery is unnecessarily described, in an 
indictment for desecrating and disfiguring it, by metes 
and bounds, with minuteness and particularity, it must 
be proved exactly as set forth. 4 

1 Mitchell et al. v. Thome, 57 Hun (N. Y.) 405 (1890). 

2 Davidson v. Reed et al., Ill 111. 167 (1884). 

8 Spooner v. Brewster, 2 C. & P. (Eng.) 34 (1825). 

4 Commonwealth v. Wellington, 7 Allen (Mass.) 299 (1863). 



196 



MORTUARY LAW. 



CHAPTER XXVIII. 

OPENING HIGHWAYS THROUGH CEMETERIES. 

Ground consecrated for burial purposes cannot be 
applied to secular uses, nor the bodies of the dead 
buried therein removed by the owners of the soil 
without the authority of a legislative act at common 
law. 1 

In the United States it is generally held that the 
simple fact that lands have been previously devoted 
to cemetery purposes does not place them beyond the 
reach of the power of the principle of eminent do- 
main. 2 And lands obtained by legal proceedings 
under the right of eminent domain, and also by pur- 
chase and conveyance from the owner, are both held 
in the same tenure in this respect. The general 
power which towns and cities have to take lands for 
public roads and streets is insufficient to enable them 
to condemn cemeteries, or any part of them, to such 
purposes. Such authority must be specially granted 
by the legislature, or necessarily and reasonably im- 
plied. But where the authority rests upon implica- 
tion, it will be presumed that the legislature did not 

1 Queen v. Twiss, Judge, 10 B. & S. (Eng.) 298 (1869). 

2 Board of Street Opening, Sfc. v. St. John's Cemetery, 133 
N.Y. 329 (1892). 



OPENING HIGHWAYS THROUGH CEMETERIES. 197 

so intend, unless there is a clear public necessity for 
the taking. 1 

These rules apply to every part of cemetery lands, 
whether they are occupied by graves or specially 
improved for such purposes or not, when statutes 
provide that no highways shall be laid through ceme- 
tery grounds. 2 But when a city dedicates a tract of 
land to cemetery purposes, and sells lots in the 
available parts of it, the city can subsequently to 
improvements being made by the purchasers of 
such lots permit a railroad to run through the 
unavailable portion, even against the protest of the 
lot owners. 3 

When land is taken from a cemetery against the 
will of the proprietors, the damages are the actual 
cash market value of the portion taken, in addition to 
the damages to the remainder which will be caused by 
both the construction and operation of the railroad ; 
or the difference between the fair market value of the 
whole at the time of the taking and the fair market 
value of what remains after the taking. 4 

If a town insists upon its right to enter a cemetery 
and open a highway through it, relief can be sought 
in equity by injunction. Law is too feeble and slow 
a remedy, when a few hours' delay may result in 

1 Evergreen Cemetery Association v. City of New Haven, 43 
Conn. 234 (1875). 

2 Village of Hyde Park v. Oakwoods Cemetery Association, 119 
111. 141 (1886). 

s Wood et al. v. Macon and Brunswick R. R. Co. et al., 68 
Ga. 539 (1882). 

4 Concordia Cemetery Association v. Minnesota and Northwest- 
ern R. R. Co., 121 111. 199 (1887). 



198 



MORTUARY LAW. 



irreparable havoc among the gravestones, the mounds, 
and even the remains of loved ones. 1 

Though municipalities have no right of themselves 
to open streets through cemeteries, on the other hand 
a cemetery company has no authority to close an 
alley already opened because it has purchased ground 
on both sides of it. 2 

1 Trustees of First Evangelical Church et al. v. Walsh et al., 57 
111. 363 (1870). 

2 Du Bois Cemetery Co. v. Griffin et al., 165 Pa. St. 81 
(1895). 



ABOLITION OF CEMETERIES. 



199 



CHAPTER XXIX. 

ABOLITION OF CEMETERIES. 

Cemeteries are abolished in two ways, by abandon- 
ment and by an act of the legislature. 

Abandonment. — Bodies are not buried for a cer- 
tain period, but presumably for all time ; and a ceme- 
tery therefore does not become legally abandoned by 
merely not making new interments therein, though a 
long period of time — sixty years, for instance — has 
elapsed, if it has once acquired the character of a 
cemetery. 1 But when all parties in interest appro- 
priate the burial ground to other uses and purposes, 
or allow it to be destroyed or lose its identity as a 
burial place, and no longer regard it as such, it is 
a legal abandonment at common law. There must 
be an actual abandonment, as well as an intention to 
abandon. 2 

In the case of Stevens v. Town of Norfolk? a town 
legally took certain land for the enlargement of their 
cemetery, and the title had become vested in the town 

1 Common wealth v. Wellington, 7 Allen (Mass.) 299 (1863) ; 
Campbell v. City of Kansas, 102 Mo. 326 (1890); Attorney Gen- 
eral et al. v. Mayor, Sfc. of City of Newark, 42 N. J. Eq. 531 
(1887). 

2 Stevens v. Town of Norfolk, 42 Conn. 377 (1875). 



200 



MORTUARY LA^V. 



for that use. But before any use had been made of 
it, at the instance of the owner, the town appointed a 
committee to procure another lot, and instructed the 
selectmen to convey back the land already taken. 
Another lot was purchased, but, as it proved unsuit- 
able, and the selectmen declined to release the lot 
first taken to the owner, and the town instructed the 
committee later to proceed to occupy, lay out, and 
enclose the lot first taken, and subsequently voted to 
rescind the prior vote to release it, the vote to release 
was at the most only a declaration of an intention 
to abandon the land if another suitable lot should 
be obtained, although the value of the land had been 
deposited by the town with the treasurer of the county 
for the owner, according to law, and he had never 
taken it. Where a city takes possession of an ancient 
neighborhood burial ground, it cannot abandon it. 1 

Act of the Legislature. — The legislature has author- 
ity to confer upon a city the power to condemn a 
cemetery for park purposes. 2 Nothing but the most 
pressing public necessity should ever cause the rest 
and peace of the dead to be disturbed. 3 In the case 
of Campbell v. City of Kansas* the city passed an or- 
dinance in 1857 vacating land that had been dedicated 
to the public for burial purposes ten years previously, 
and prohibited further interments therein under a 
penalty, notifying by newspaper advertisement the 

1 Campbell v. City of Kansas, 102 Mo. 326 (1890). 

2 Campbell v. City of Kansas, 102 Mo. 326 (1890); St. John's 
Cemetery, 62 Hun (N. Y.) 499 (1891). 

8 Campbell v. City of Kansas, 102 Mo. 326 (1890); Craifj et al. 
v. First Presbyterian Church of Pittsburgh, 88 Pa. St. 42 (1878). 
4 Campbell v. City of Kansas, 102 Mo. 326 (1890). 



ABOLITION OF CEMETERIES. 



201 



relatives of the persons buried there to remove their 
remains, which was done. The city then took exclu- 
sive possession, graded streets surrounding it, and 
used the land for breaking stone, etc., and subse- 
quently converted it into a park, no objection being 
made by the people. 

Where certain lands are vested, if vested at all, in 
trust merely for and subject to use as a burial ground 
forever, such use is perpetual, and the city authorities 
cannot, under statutory authority even, destroy it, and 
devote the land to other purposes, for the original use 
is not subject to legislative revocation, and therefore 
the statute authorizing such destruction is unconstitu- 
tional. Such is the strong position which the New 
Jersey court takes in the case of Attorney General 
et al. v. Mayor, §c. of City of Newark. 1 And the New 
York court holds that lot owners cannot be deprived 
of their property without their consent, if they have 
the title to the land, and that a direction by the legis- 
lature to the cemetery association having general 
charge of the cemetery to sell and convey it has no 
valid force. 2 

But under the application of the police power of the 
State all cemeteries can be abolished in proper cases ; 
and the State can exercise this power either directly 
or by delegation to municipalities. 3 Injury to public 

1 Attorney General et al. v. Mayor, Sfc. of City of Neivark, 42 
N. J. Eq. 531 (1887). 

2 Went v. M. P. Church of Williamsburgh et al, 80 Hun 
(N. Y.) 266 (1894). 

3 Campbell v. City of Kansas, 102 Mo. 326 (1890) ; Craig et 
al. v. First Presbyterian Church of Pittsburgh, 88 Pa. St. 42 
(1878). 



202 



MORTUARY LA W. 



health must be the ruling cause of such abolition. 1 
This may be done in view of the advance of urban 
population, if it is detrimental to public health or in 
danger of becoming so. 2 But a burial place does not 
become unsuitable for the purposes of interment be- 
cause it hinders the improvement of the property in 
its vicinity, nor because the sight of it may produce 
in some persons disagreeable feelings. 3 

The abolition of burial grounds may be accomplished 
in two ways, — by prohibiting interments and permit- 
ting the bodies to remain in the ground, which is 
to be undisturbed in the future, and by prohibiting 
future interments and removing the remains to other 
cemeteries. 4 Prohibition of future burials simply de- 
stroys the rights of the public generally in the ceme- 
tery, says the court in the case of Campbell v. City of 
Kansas? In the case of Coates v. Mayor, Sfc. of City 
of New York, 6 a statute authorized the city of New 
York to make by-laws " for regulating, or, if they find 
it necessary, preventing, the interment of the dead " 
within the city, and a by-law was passed prohibiting 
burials in certain portions of the city, under a penalty. 
Interments continued to be made in those portions, 
however, by persons having a right under grants of or 

1 Campbell v. City of Kansas, 102 Mo. 326 (1890); Went v. M. 
P. Church of Williumsburgh et al, 80 Hun (N. Y.) 266 (1894). 

2 Went v. M. P. Church of Williamsburgh et al., 80 Hun 
(N. Y.) 266 (1894). 

3 Reed et al. v. Stouffer et al., 56 Md. 236 (1881). 

4 Craig et al. v. First Presbyterian Church of Pittsburgh, 88 
Pa. St. 42 (1878). 

5 Campbell v. City of Kansas, 102 Mo. 326 (1890). 

6 Coates v. Mayor, fyc. of City of New York, 7 Cowen (N. Y.) 
585 (1827). 



ABOLITION OF CEMETERIES. 



203 



titles to land held in trust for the sole purpose of 
interment, some of which had been used for that pur- 
pose for more than a hundred years, and to some of 
which certain fees for burial were incident, and be- 
longed to the persons having the right of interment 
therein. The act was regarded as a police regulation, 
and was held valid and operative as to these inter- 
ments, and also to rights claimed by individual vault 
owners, in whose behalf some of the interments were 
made. 

The recital in a special act of the legislature that 
the continuance of a cemetery or tombs in a church is 
dangerous to the public health, and an order that the 
remains be removed, and no more interments made, 
cannot be objected to. 1 

The legislature, in directing the removal of the 
dead, must provide for the expense of such removal, 
and, while it may impose that expense upon the re- 
spective burial lots, or upon their owners, they must 
proceed by lawful methods. 2 Probably in no case 
should the expense be borne by the relatives of the 
deceased persons whose bodies are buried therein. 3 

The remains, and the monuments, etc., on the lot 
can be removed by the relatives of the persons buried 
therein, and if they do not attend to it after a general 
notice, it is the duty of the public authorities to per- 
form the service, 4 and they will not be liable to the 

1 Sohier et. al. v. Trinity Church et al, 109 Mass. 1 (1871). 

2 Went v. M. P. Church of Williamsburgh et al., 80 Hun 
(N. Y.) 266 (1894). 

3 St. John's Cemetery, 62 Hun (N". Y.) 499 (1891). 

4 Campbell v. City of Kansas, 102 Mo. 326 (1890); St. John's 
Cemetery, 62 Hun (N. Y.) 499 (1891). 



204 



MORTUARY LAW. 



families of the deceased if they remove the bodies 
without their knowledge after such notice. 1 

Churchyards and cemeteries of religious societies 
are more transitory than others. Those who inter the 
remains of their friends or relatives in such burial 
places have no right or title, and they cannot prevent 
the sale of such a cemetery by the corporation and 
the removal of the remains interred therein, if done 
in a proper and legal manner. Payments of fees 
and charges for interments give no title to the land, 
the right being simply to have the bodies remain there 
until the burial place should be discontinued, and then 
to have them removed and properly deposited in a 
new place of sepulture. 2 In the case of Windt et al. 
v. German Reformed Church, 3, the court 4 said : " Jt is 
painful and deeply abhorrent to the sensibilities of our 
nature to have the remains of beloved friends and 
relatives disturbed in their last homes, and removed 
by rude and careless hands to a distant cemetery, not 
hallowed by any of the associations which encircle the 
consecrated ground where we have deposited them in 
sadness and in sorrow. I confess that I have not be- 
come so much of a philosopher as to regard the bodies 
of deceased friends as nothing more nor better than 

1 Bessemer Land Improvement Co v. Jenkins, 18 So. Rep. 
(Ala.) 565 (1805). 

2 Partridge et al. v. First Independent Church of Baltimore, 
39 Md. 631 (1873) ; Windt et al. v. German Reformed Church, 4 
Sandf. Ch. (N. Y.) 471 (1847); Richards v. Northwest Protestant 
Dutch Church, 32 Barb. (N. Y.) 42 (1859) ; Craig et al. v. First 
Presbyterian Church of Pittsburgh, 88 Pa. St. 42 (1878). 

8 Windt et al. v. German Reformed Church, 4 Sandf. Ch. 
(N. Y.) 471 (1847). 

4 Hon. Lewis H. Sandford, vice-chancellor. 



ABOLITION OF CEMETEEIES. 



205 



the clods of the valley, and that my sympathies were 
strongly enlisted in behalf of these complainants vin- 
dicating the repose of their kindred. But I cannot 
shut my eyes to the clear light of the law as applicable 
to this case." 

A church organization can be allowed to abolish so 
much of the churchyard as is necessary to enable 
them to erect a new church thereon, and may be 
ordered to remove the bodies buried therein. 1 

When a religious corporation has received a fee of 
the ground on which the church and graveyard are 
located, subject only to the keeping of the whole to 
pious uses, such corporation can grant any length of 
lease or a fee of portions of the ground for burials or 
vaults ; and in the latter case the grantee will obtain 
a fee. 2 In the case of Richards v. Northwest Protes- 
tant Dutch Church? it was held that, although such a 
lot was conveyed by deed to the grantee " and his 
heirs and assigns forever," stipulating that it shall 
" never be dug up, disturbed, or destroyed," yet, if 
it describes the premises as belonging to a church 
corporation, or adjacent to a church edifice, or in a 
churchyard, etc., it gives the right of interment in the 
particular plat of ground so long as that and the con- 
tiguous ground continues to be occupied as a church- 
yard. Every person taking a right takes it with 
knowledge that the conditions are liable to change. 

1 Price et al. v. M. E. Church el al, 4 Ohio 515 (1831). 

2 Matter of Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 
155 (1837); Windt et al. v. German Reformed Church, 4 Sandf. 
Ch. (X. Y.) 471 (1847). 

8 Richards v. Northwest Protestant Dutch Church, 32 Barb. 
(N. Y.) 42 (1859). 



206 



MORTUARY LAW. 



But where there is an actual legal fee conveyed, the 
property cannot be sold while such lot owner objects 
to the sale. 1 To enable one to raise the point that an 
act of the assembly authorizing the removal of the 
dead impairs the obligation of a contract, it is not 
sufficient to show that he has relatives interred in the 
grounds ; he must prove by the record that he has 
rights of sepulture there, or some contract relation 
with the church. 2 

When church burial grounds are abolished the lot 
holders can claim no compensation or reimbursement 
out of the proceeds of the sale of the premises by the 
corporation, or for the improvements or erections 
(such as vaults, etc.) which he has placed thereon. 
In such cases all monuments and other structures 
capable of being removed are the personal property of 
the lot holder, and he can remove them upon the 
abolition of the cemetery. 3 

In an application to court by a religious organiza- 
tion for leave to sell its church and grounds, it is not 
necessary, probably, to state that they have found a 
purchaser, and fixed upon a new site. A conditional 
order may be made. 4 

Where grounds were conveyed to a certain congre- 
gation, and by it appropriated to burial purposes, the 
congregation having grown subsequently so much that 

1 Matter of Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 
155 (1837). 

2 Craig et al. v. First Presbyterian Church of Pittsburgh, 88 Pa. 
St. 42 (1878). 

8 Partridge et al. v. First Independent Church of Baltimore, 39 
Md. 631 (1873). 

4 Matter of Brick Presbyterian Church, 3 Edw. Ch. (X. Y.) 
155 (1837). 



ABOLITION OF CEMETERIES. 



207 



it was divided into three, the ground was conveyed to 
the three as tenants in common equally, lots were sold 
to individuals, and interments made ; and later an act 
of the assembly authorized the vacation and sale of 
the ground by commissioners, and the removal of the 
bodies to other lots to be purchased with the proceeds 
of the sale, and after payment of the expense the 
payment of the balance to the lot holders according 
to their respective interests, to be ascertained by the 
court, the congregation should be made parties to a 
bill by the lot holders to restrain the commissioners 
from carrying out the act of the assembly. 1 



1 Kincaid's Appeal, 66 Pa. St. 411 (1870). 



208 



MORTUARY LAW. 



CHAPTER XXX. 

JURISDICTION OF COURTS. 

The jurisdiction of the courts in England in all 
mortuary matters is divided between the ecclesiasti- 
cal and the law courts, but not so clearly but that 
contests concerning their respective jurisdictions 
frequently raged. The ecclesiastical courts have 
cognizance of all controversies relating to burials in 
consecrated ground. 1 This jurisdiction was confined 
to the mode of burial and the protection of the body, 
except that they could not affect property rights, nor 
the police powers of the State. The church first had 
charge of the remains of the great lights of its clergy, 
then of saints generally, and finally of all its parish- 
ioners. The bodies of the saints, both famed and un- 
famed, were held as sacred, and the law yielded the 
control and government of sacred things to the church, 
which is only a branch of the general authority and 
government of England. The church obtained this 
exclusive power, both executive and judicial, as well 
as legislative, soon after the Conquest. 

Every man had the right to be buried in the church- 
yard of the parish where he lived, 2 but the parson 

1 King v. Coleridge et al, 2 B. & Aid. (Eng.) 806 (1819). 

2 Foster v. Dodd et al, 8 B. & S. (Eng.) 842 (1867) ; Pierce 
et mx. v. Proprietors of Swan Point Cemetery et al., 10 R. I. 227 
(1872). 



JURISDICTION OF COURTS. 



209 



could in many respects deal with it as if it were his 
private property. 

It was held in the English case of In re Rector, $c. 
of St. George-in-the-Uast, 1 that the consistory court of 
Loudon could empower the rector and church wardens 
on their petition to construct paths, etc. over and 
through a part of their churchyard which was closed 
to further burials, that it might be used for a public 
garden. The court, however, could not order that 
the cemetery be put to other uses. 2 

It was the Christian belief in the resurrection of 
the body that caused the burial of the dead to be 
taken in charge by the church. Connected with the 
exercise of that belief was a refusal of the rites of 
Christian burial to certain unregenerate persons, such 
as traitors, murderers, suicides, etc. For the disposi- 
tion of the dead bodies of such persons the church 
made no provision. If left to the church alone, such 
would have perished like the beasts, with no human 
eye to see, and no human heart to pity, and no human 
hand to bestow upon that which was formed in the 
likeness of God the last act of common decency. 

The civil courts of England have jurisdiction over 
the title to and possession of the grounds, monuments, 
etc., and of all actions of trespass, etc., and in the 
enforcement of the police powers of the State. 

In America there are no ecclesiastical tribunals that 
the law recognizes. The questions that arise in mor- 
tuary matters are generally within the jurisdiction of 
the court of equity, though there are many cases in 

1 In re Rector, 8fc. of St. Georcje-in-the-East, L. R. 1 P. Div. 
(Eng.) 311 (187G). 

2 Queen v. Twiss, L. R. 4 Q. B. (Eng.) 407 (1869). 

14 



210 



MORTUARY LAW. 



which legal remedies are amply sufficient. 1 For 
instance, the court of equity has power (o enjoin 
boards of health of towns from establishing burial 
places, if they should proceed to do it illegally or 
improperly, to the injury of others. 2 Equity can 
always be sought in these matters, if it appears that 
the law is inadequate to give full redress, as in cases 
where relatives of the deceased have no standing in a 
law court because of lack of contractual relations, etc., 
with the owners of the cemeteries, and no right to 
complain under the strict rules of law. 3 



1 Weld v. Walker et al., 130 Mass. 422 (1881). 

2 Upjohn v. Board of Health et al., 46 Mich. 542 (1881). 
8 Boyce et al. v. Kalbaugh et al., 47 Md. 334 (1877). 



INDEX. 



Page 

ABANDONMENT OF CEMETERIES, effect of . . 199 

ABOLITION OF CEMETERIES 199 

by abandonment 199 

by Act of Legislature 200 

of religious societies 204 

ACQUIREMENT OF LAND FOR CEMETERY 

PURPOSES 136 

by conveyance 141 

by dedication 137 

by prescription 136 

by right of eminent domain 142 

AMOUNT ALLOWED FOR FUNERAL EXPENSES 70 

monuments, etc 89 

APPLICATION TO TAKE LAND FOR CEME- 
TERY PURPOSES BY RIGHT OF EMINENT 

DOMAIN 146 

ASSOCIATIONS, CEMETERY 128 

interest of lot owners in 185 

ATTENDANCE OF SOCIETIES AT FUNERALS 

expense of . 67 

AUTOPSIES IN INQUESTS 16, 20 

other cases ... 20 

BEARERS, expense of 67 

pall-bearers, expense of 67 

BODIES, DEAD HUMAN 

custody of 26 

disposition of 30 



212 INDEX. 

BODIES, DEAD HUMAN — continued. Page 

laying out 02 

property in 22, 23 

sale of, for dissection 22 

transportation of 62 

BODY-SNATCHING 21, 22 

BOUNDS AND FENCES OF BURIAL LOTS . . 99 

BURIAL 41 

duty of 3G 

record of 9 

right of 30 

permits . 100 

BURIAL LOT, expense of 68 

BY-LAWS 159 

municipal 159 

of cemetery associations 161 

CARE AND CONDUCT OF CEMETERIES ... 172 

CARRIAGES AT FUNERALS, expense of ... . 67 

CEMETERIES 114 

what constitutes a cemetery 117 

kinds 119 

associations 128 

churchyards 120 

denominational 123 

free 127 

interments in churches 119 

national 125 

private 131 

public 125 

State 125 

tombs 114 

establishment of 119 

acquirement of hind for 136 

care and conduct of 172 

as charities 155 

as nuisances 149 

practice 154 



INDEX. 213 

CEMETERIES — continued. page 

desecration of 192 

opening highways through 196 

abolition of 199 

prohibition of 133 

of establishment 133 

of further use 134 

CHARITIES, CEMETERIES AS 155 

CHURCHES, INTERMENTS IN 119 

CHURCHYARDS 120 

COFFINS 53, 54, 63 

CONVEYANCE OF THE RIGHT OF THE PUB- 
LIC IN DEDICATED CEMETERY LANDS . 140 

CORONERS 13 

right of custody of certain dead bodies 28 

COURTS, JURISDICTION OF 208 

CREMATION 44 

CUSTODY OF DEAD BODIES 26 

license to enter premises to take 26 

to whom custody belongs 26 

actions for deprivation of 28 

DAMAGES FOR TAKING LANDS FOR CEME- 
TERY PURPOSES BY RIGHT OF EMINENT 

DOMAIN 146 

DEATH 

notice of 62 

presumption of 7 

record of 9 

DEDICATION, ACQUIREMENT OF CEMETERY 

LANDS BY 137 

effect of 140 

nature of right parted witli 140 

time as an element of 140 

DEEDS OF BURIAL LOTS, AS TO BOUNDS, 

CONSTRUCTION OF 187 



214 INDEX. 

Page 

DENOMINATIONAL CEMETERIES 123 

rules of 161 

DESECRATION OF CEMETERIES 192 

of the soil 192 

of the fixtures 193 

private cemeteries 194 

public cemeteries 194 

practice 194 

DISPOSITION OF DEAD BODIES 30 

duty of 36 

manner of 39 

right of « 30 

DISSECTION 21, 46 

sale of bodies for 22 

DUTY OF BURIAL 36 

of personal representatives 36 

of relatives 37 

of others 38, 39 

EMBALMING 47 

EMINENT DOMAIN, ACQUIREMENT OF CEME- 
TERY LANDS BY RIGHT OF 142 

purpose of the taking 142 

necessity for the taking 144 

who decides 146 

application 146 

damages 146 

EPITAPHS ON MONUMENTS, ETC 96 

ESTABLISHMENT OF CEMETERIES 119 

acquirement of lands 136 

prohibition of 133 

EXAMINATIONS, POST MORTEM 20 

EXHUMATION OF DEAD BODIES 109 

permits for 100, 102 

EXPENSES 

of last sickness. See Last Sickness. 

of inquests 17 



INDEX. 215 

EXPENSES — continued. Page 

of funerals 59 

gratuitous services 59 

notice of indebtedness 77 

who may contract therefor 73 

who are primarily liable 78 

where credit is given 83 

amount allowed 70 

practice 83 

what is included : 

laying out the body 62 

notice of death 62 

transportation of body 62 

shroud 63 

coffin 63 

wake 63 

funeral services 64 

refreshments 64 

mourning 64 

mourning rings 66 

gloves 66 

portrait 67 

bearers 67 

pall 67 

pall- bearers 67 

carriages 67 

attendance of societies at funerals .... 67 

burial lot 68 

grave 69 

marking place of interment 69 

monuments 86 

reinterment 70 

FREE CEMETERIES 127 

rights of lot holders in 186 

FUNERAL 51 

expenses 59 

services 52, 55, 56 

wakes 55 

pall 55 



216 INDEX. 

FUNERAL — continual. Page 

mourning 57 

refreshments 57 

mourning rings 57 

gloves 58 

GLOVES 58 

expense of 6G 

GRATUITOUS SERVICES 59 

GRAVE, EXPENSE OF DIGGING 69 

GRAVESTONES. See Monuments. 

HEARINGS, INQUEST 11-19 

HIGHWAYS THROUGH CEMETERIES, OPEN- 
ING 196 

INQUESTS 11 

in what cases held 11 

information of death 12 

time of holding 12 

place of holding 13 

by whom held 13 

the hearing 14 

autopsy 16 

expenses . 17 

interference with 19 

second 19 

INSCRIPTIONS ON MONUMENTS, ETC 96 

JURISDICTION OF COURTS 208 

KINDS OF CEMETERIES 119 

LARCENY 191 

LAST SICKNESS 1 

duration of 2 

character of service 4 

expense of 4 

who is responsible therefor 5 

amount allowed Q 



INDEX. 217 

Page 

LAYING OUT DEAD BODIES 62 

LOT OWNERS, RIGHTS AND LIABILITIES OF 177 

tenure *•«* 

duration of 181 

interest in proceeds of sales of lots 181 

duty to others 182 

rights of the public 182 

interest in the remainder of the cemetery .... 183 

privileges of visitors 184 

interest in associations 185 

rights in free cemeteries 186 

ornamentation 187 

right to build vaults and tombs 184 

recovery of possession 187 

removal of bodies on abolition of cemetery .... 182 

construction of deeds as to bounds 187 

rights of several owners of lots 188 



MANNER OF DISPOSITION OF DEAD BODIES. 39 

burial 41, 52 

cremation 44 

dissection 46 

embalming 47 

MARKING PLACE OF INTERMENT, expense of . 69 

MONUMENTS • • 86 

desires of deceased concerning, expressed orally . . 91 

directions in wills 91 

who can contract therefor 87 

amount allowed to be expended therefor 89 

inscriptions on 96 

property in Vi} 

allowance for two tombstones 95 

exchange of 95 

MORTGAGE OF CEMETERY PROPERTY ... 170 

MORTUARIES 84 

MOURNING 57 

expense of ^4 



218 INDEX. 

Page 

MOURNING RINGS 57 

expense of 66 

MUTILATION OF DEAD BODIES 20 

dissection 21 

NATIONAL CEMETERIES 125 

NOTICE 

of death 62 

of funeral expenditures 77 

NUISANCES, CEMETERIES AS '. . 149 

ORDINANCES, MUNICIPAL 159 

ORNAMENTATION OF CEMETERIES 187 

PALL-BEARERS, expense of 67 

PALLS 55 

expense of 67 

PARTIES TO BILLS FOR ABOLITION OF CEM- 
ETERIES AS NUISANCES 154 

PARTITION OF CEMETERY PROPERTY ... 171 

PERMITS TO TRANSPORT, BURY, AND EXHUME 

DEAD BODIES 100 

PERSONAL REPRESENTATIVES 

duty of burial 36 

right of burial 34 

PORTRAIT OF DECEASED, expense of .... 67 

PRACTICE 

concerning funeral expenses 83 

desecration of cemeteries 194 

quashing assessments for tax of cemetery property, etc. 168 

recovery of possession of burial lot 187 

who decides the purpose of necessity for taking lands 

for cemetery purposes by right of eminent domain . 146 

parties to bill for abolition of cemetery as a nuisance . 154 

PRESCRIPTION, ACQUIREMENT OF CEMETERY 

LANDS BY 136 

PRESUMPTION OF DEATH 7 



INDEX. 219 

Page 

PRIVATE CEMETERIES 131 

desecration of 194 

PROHIBITION OF CEMETERIES 133 

of establishment of 133 

of further use of 134 

PROPERTY 

in dead bodies 22, 23 

in monuments, etc 99 

PUBLIC CEMETERIES 125 

desecration of 194 

RECORD OF DEATHS AND BURIALS .... 9 

REFRESHMENTS AT FUNERALS 57 

expense of . ; 64 

REINTERMENT 

right of 34 

expense of 70 

RELATIVES 

duty of burial 37 

right of burial 32 

REPLEVIN 189 

REVERSION OF LANDS DEDICATED TO OR 
TAKEN BY RIGHT OF EMINENT DOMAIN 

FOR CEMETERY PURPOSES 147 

RIGHT OF BURIAL 30 

of the deceased 30 

of relatives 32 

of personal representatives 34 

of reinterment 34 

legal nature of 36 

its termination 32 

RULES AND REGULATIONS 159 

for denominational cemeteries 161 

SALE OF DEAD BODIES 22 

SALE OF CEMETERY PROPERTY 169 

on execution 169 



220 INDEX. 

Page 

SERVICES, FUNERAL 52, 55, 56, 59 

gratuitous 59 

f 64 

expense oi u * 

SHROUD 63 

SICKNESS, LAST. See Last Sickness. 
SOCIETIES AT FUNERALS, EXPENSE OF AT- 
TENDANCE OF 67 

STATE CEMETERIES 125 

TAXATION 162 

what is meant by taxes 163 

kind of property exempted from 164 

what land is exempted from 164 

who should be assessed for taxes 167 

quashing assessment, etc 168 

effect of prohibition of interments 167 

collection of taxes 167 

TENURE OF OWNERS OF LOTS IN CEME- 
TERIES 177 

duration of 181 

TOMBS 114 

right of lot owners to build 184 

TRANSPORTATION OF DEAD BODIES ... 62, 103 

at common law 103 

statutory provisions 104 

permits for 100 

UNDERTAKERS 48, 52 

VAULTS, RIGHT OF LOT OWNERS TO BUILD . 184 

VISITORS TO CEMETERIES, PRIVILEGES OF . 184 

WAKES 55 

expenses of 63